2014 (11) TMI 369 - AT - Central Excise

Rectification of mistake - Tribunal disposed of two Orders-in-Original and only one of the order number is mentioned in the final order - Held that - Law as laid down by the Hon ble High Court of Gujarat in the case of Himanshu Traders (2010 (2) TMI 384 - GUJARAT HIGH COURT) would be applicable as we have considered the merits of the case and it needs to be ascertained whether appellant is eligible for the Cenvat credit or not. Since identical issue as is in the matter is remanded back to the Adjudicating Authority, we find that the error which has crept in the final order of the Tribunal by non-mentioning of OIO No. 10/Dem/2002 needs to be rectified and we do so. - Rectification done.

Summary

Issues:
Application for modification of Final Order, Clarification of disposal of appeals, Rectification of typographical error in the order, Application beyond the period of limitations, Applicability of High Court decision on limitation issue, Identical issues in OIO No. 9/Dem/2002 and OIO No. 10/Dem/2002, Rectification of the error in the final order.

Analysis:
The application before the Appellate Tribunal was for the modification of the Final Order dated 21.3.2003, which had disposed of two appeals but mentioned only one order in OIO No. 09/Dem/2002. The appellant argued that another order, OIO No. 10/Dem/2002, was also pending before the Adjudicating Authority, and its omission in the Tribunal's order created ambiguity. The appellant cited a High Court decision and an Apex Court decision to support the argument that the order should not be dismissed solely based on the limitation under Section 35C of the Central Excise Act 1944.

The Department Representative contended that the Tribunal's order clearly indicated consideration of only one appeal related to OIO No. 9/Dem/2002 and that OIO No. 10/Dem/2002 pertained to a different issue. It was argued that the appellant's application was time-barred under Section 35C(2) of the Act.

After hearing both parties and examining the records, the Tribunal noted that the appellant's application to correct the typographical error regarding OIO No. 10/Dem/2002 was indeed beyond the statutory limitation period. However, the Tribunal acknowledged that the issue in OIO No. 10/Dem/2002 was identical to that in OIO No. 9/Dem/2002, which was explicitly mentioned in the Tribunal's order. Considering the High Court precedent and the merits of the case, the Tribunal decided to rectify the error in the final order. The Tribunal clarified that both appeals were disposed of, and both OIO No. 09/Dem/2002 and OIO No. 10/Dem/2002 dated 19.3.2002 were set aside. The Tribunal directed that certain words in the order be read in the plural form and disposed of the application for rectification of mistake accordingly.