2008 (4) TMI 68 - AT - Central Excise

Rectification of mistake application - remedy of appeal, revision or review etc. is creature of statute and rectification application under Section 35-C(2) of the Central Excise Act cannot be placed on a higher pedestal - Tribunal s power of rectifying any mistake cannot be used as a tool by a disgruntled unsuccessful party to prolong the proceeding -application does not satisfy the tests to justify recall of the final order application rejected

Issues:
1. Application under Section 35-C (2) of the Central Excise Act for correction of mistake in Final Order.
2. Determination of the timeliness of the application.
3. Analysis of the maintainability of the application within the framework of Section 35-C(2).
4. Consideration of legal precedents related to rectification applications.
5. Examination of the grounds for rectification and re-hearing of the appeal.
6. Evaluation of the scope of review jurisdiction under Order 47 of the Civil Procedure Code.
7. Determination of whether the rectification application justifies the recall of the final order.

Detailed Analysis:
1. The judgment revolves around an application filed under Section 35-C (2) of the Central Excise Act seeking the correction of a mistake in the Final Order that dismissed the appeal of the applicant. The appeal stemmed from the Order-in-Original confirming a demand and imposing a penalty under Rule 173-Q of the Central Excise Rules, 1944.

2. The issue of timeliness of the application arose due to the limitation of six months within which the Appellate Tribunal may rectify any mistake in its order. The application was initially listed before the Bench in 2007, leading to a debate on whether it was filed within the stipulated time frame.

3. The crux of the matter was the maintainability of the application under Section 35-C(2) of the Act. The Tribunal delved into whether the order suffered from a mistake "apparent from the record" warranting rectification, emphasizing that no party can use the rectification process for re-hearing or review of the order.

4. Legal precedents were cited to support the analysis, highlighting cases involving time bar issues and the rectification of orders due to factual mistakes or errors apparent on the face of the record. The Tribunal underscored the significance of addressing pleas related to time bar, which impact the jurisdiction and maintainability of proceedings.

5. The judgment scrutinized the grounds for rectification and re-hearing of the appeal, noting the applicant's attempt to reopen the classification dispute through the rectification application. The Tribunal emphasized that seeking re-hearing under the guise of rectification was impermissible for an unsuccessful party.

6. The scope of review jurisdiction under Order 47 of the Civil Procedure Code was explored, distinguishing between mere erroneous decisions and errors apparent on the face of the record. The Tribunal elucidated that rectification applications must demonstrate patent errors without room for controversy.

7. Ultimately, the Tribunal concluded that the rectification application did not meet the criteria for recalling the final order. Emphasizing that the power of rectification should not be misused to prolong proceedings, the Tribunal rejected the application, affirming the disposal of the appeal by a reasoned order.

In conclusion, the judgment provides a comprehensive analysis of the issues surrounding the rectification application under Section 35-C(2) of the Central Excise Act, underscoring the importance of adhering to legal principles and procedural requirements in such matters.

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