2016 (10) TMI 757 - AT - Central Excise

Rectification of mistake application - Section 35C(2) of the Central Excise Act, 1944 - principles of natural justice - Held that - the appeal before the Hon ble High Court also includes all these grounds mentioned in the present ROM and that appeal was filed much earlier to this application and the matter is sub judice before the Hon ble High Court. Further, we are of the opinion that the grounds on which ROM is sought is nothing but touching the merits of the case and the same cannot be gone into while deciding the ROM. Secondly, when the applicant has already challenged the decision of the Tribunal before Hon ble High Court there is no justification for filing the present ROM. In view of these facts and circumstances, we are of the opinion that there is no error apparent on face of the records - ROM application dismissed being devoid of merits - decided against applicant.

Summary

Issues:
Rectification of Mistake under Section 35C(2) of the Central Excise Act, 1944 regarding imposition of penalty, violation of principles of natural justice, ignorance of notification 89/82-Cus dated 25.03.1982.

Analysis:
The applicants filed an application under Section 35C(2) seeking rectification of mistake in the final order dated 05.08.2015, claiming that the Tribunal did not address the imposition of penalty despite detailed arguments presented. They contended that subsequent show-cause notices did not allege suppression, thus the penalty imposed under those notices should be deleted. The applicants argued that the Tribunal's finding on the applicability of an explanation to Section 3(1) of the Act violated principles of natural justice as they were not given an opportunity to argue on this point. Additionally, they highlighted the Tribunal's alleged ignorance of notification 89/82-Cus dated 25.03.1982, which they claimed was already part of the record.

The Respondent vehemently opposed the rectification of mistake application, arguing that the grounds presented did not meet the conditions outlined in Section 35C(2) and that the applicants were attempting to review the entire case on its merits under the guise of rectification. The Respondent pointed out that the applicants had already appealed the Tribunal's decision to the High Court, including the grounds raised in the rectification application, rendering the matter sub judice. The Respondent further criticized the timing of the rectification application, filed five months after the case's disposal, as an abuse of the court's process.

After hearing both parties and reviewing the records, the Tribunal noted that the grounds for rectification were essentially delving into the merits of the case, which was inappropriate for a rectification application. The Tribunal highlighted that the issues raised in the rectification application had already been included in the appeal before the High Court, making the rectification redundant. Consequently, the Tribunal found no error apparent on the face of the records and dismissed the rectification application for lacking merit. The Tribunal emphasized that the rectification application was filed after the matter had been taken to the High Court, indicating an unjustified attempt to re-litigate the case.

In conclusion, the Tribunal dismissed the rectification of mistake application, stating that it was devoid of merit and emphasizing that the issues raised were already under consideration in the appeal before the High Court. The decision was pronounced in court on 19/02/2019.