2009 (3) TMI 18 - SC - Central Excise

Application for rectification by the revenue on the ground that CCE holding that canvas cloth and tarpaulin cloth fall for classification under CH 52.07 of Schedule II to CETA 1985 a mistake apparent from the record had crept in the order of the Tribunal requiring rectification - finding of the Tribunal that there is no mistake apparent from the record in its order is a pure question of fact giving rise to no question of law revenue appeal dismissed

Summary

Issues:
1. Appeal by revenue under Section 35L(B) of the Central Excise Act, 1944 against the Tribunal's order.
2. Rectification application by revenue based on a Commissioner's order regarding classification of goods.
3. Tribunal's rejection of rectification application on the grounds of no apparent mistake in the order.
4. Interpretation of Section 35(c)(2) of the Act and the limited scope of rectification.

Analysis:
1. The Supreme Court heard an appeal by the revenue under Section 35L(B) of the Central Excise Act, 1944, challenging the Customs, Excise & Service Tax Appellate Tribunal's order dated 21st February, 2008. The Tribunal had dismissed the revenue's application for rectification of its final order dated 23rd July, 2007, which was not contested in the appeal.

2. The revenue's rectification application was based on a Commissioner's order from 1991, which classified certain goods under a specific chapter heading of the Schedule II to CETA, 1985. The revenue argued that this classification was a mistake in the Tribunal's order and sought rectification. However, the Tribunal rejected the application, stating that the classification issue did not constitute a mistake apparent from the record under Section 35(c)(2) of the Act.

3. The Tribunal's decision was based on the understanding that the goods in question were not subject to basic excise duty but only to additional duty of excise, making confiscation impermissible. The Court noted that the Tribunal's finding that there was no mistake in its order was a factual determination and did not raise any legal questions for consideration.

4. The Court emphasized the limited scope of Section 35(c)(2) of the Act for rectification and concluded that the Tribunal's decision did not warrant further review. Consequently, the Civil Appeal was dismissed by the Supreme Court in light of the above analysis.