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2018 (5) TMI 1976 - AT - Central ExciseRectification of Mistake - error apparent on the face of the record - HELD THAT - The decision of this Tribunal 2018 (1) TMI 105 - CESTAT BANGALORE dated 11-12-2017 which was passed relying upon the Final Order No. 20925/2016, dated 6-10-2016 whereas the issue involved in the present appeal is not the same as was involved in the final order relied upon by the Tribunal to dipose of the present appeal. According to us, this is an error apparent on the face of the record as the issue involved is altogether different and the decision rendered by this Tribunal dated 11-12-2017 is on a different issue. In the interest of justice, the order dated 11-12-2017 needs to be recalled - Appeal restored to its original number.
Issues:
Recall of Final Order for restoring appeal on merits due to mistaken identity of issues. Analysis: The petitioner filed a petition under Section 35C(2) of the Central Excise Act, 1944 seeking to recall the Final Order No. 23134/2017 passed in Appeal No. E/1998/2010 and restore the appeal for disposal on merits. The appeal was initially filed challenging Order-in-Appeal No. 49/2010-C.E., dated 11-6-2010. However, during the hearing on 11-12-2017, the Tribunal disposed of the appeal based on the mistaken belief that the issue was identical to a previous case, Final Order No. 20925/2016, dated 6-10-2016. The issue in question pertained to the valuation of subsidized price of SKO (PDS) and LPG Domestic versus Refinery Gate Price for valuation purposes. The petitioner contended that since the appeal was disposed of based on a different issue, the order needed to be recalled for the appeal to be restored. During the hearing, both parties were heard, and the Counsel for the applicant highlighted the mistake made by the authorized representative regarding the issue involved in the present appeal. It was argued that the Tribunal had relied on a final order related to a different issue, which was unrelated to the present case. The Counsel emphasized that such a mistake warranted the recall of the order in the interest of justice to decide the appeal on its merits. Legal precedents, including Honda Siel Power Products Ltd. v. CIT, Delhi [2008 (221) E.L.T. 11 (S.C.)] and Lachman Dass Bhatia Hingwala (P) Ltd. v. AC of IT [2016 (344) E.L.T. 875 (Del.)], were cited in support of this argument. On the contrary, the Learned AR opposed the application, contending that the applicant's intention was to reopen the case on merits, which fell outside the scope of the ROM application. After considering the submissions and records, the Tribunal acknowledged the error in relying on the Final Order No. 20925/2016 for disposing of the present appeal, as the issues were distinct. Recognizing this as an apparent mistake on record, the Tribunal, in the interest of justice, ordered the recall of the order dated 11-12-2017. The miscellaneous application was allowed, and the appeal was restored to its original number for listing in due course for a decision on merits. The operative part of the order was pronounced in open court on 24-5-2018.
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