2018 (7) TMI 245 - AT - Central Excise

Rectification of Mistake - Held that - In para 7, while confirming the duty demand in respect of clearances made by appellant to M/s.Anand, the Tribunal has wrongly included / mentioned the name of M/s. NHS also along with M/s. Anand - this is an error apparent on the face of record which requires rectification - rectification allowed. Rectification also sought on the ground that Shri Natarajan was not allowed to be cross-examined and therefore the statement cannot be relied - Held that - By mistake, the Tribunal has wrongly observed that cross-examination of Shri Natarajan was not allowed - The mistake being apparent on the face of record, rectification allowed. ROM application allowed.

Summary

Issues:
Rectification of mistake in the Final Order regarding duty demand for clearances made to M/s. NHS and M/s. Anand, and the admissibility of a statement without cross-examination.

Analysis:

1. Rectification of Mistake in Duty Demand:
The appellant sought rectification of a mistake in the Final Order passed by the Tribunal regarding the duty demand for clearances made to M/s. NHS and M/s. Anand. The appellant's counsel argued that the Tribunal incorrectly confirmed the duty demand for clearances made to M/s. Anand while also mentioning M/s. NHS in the same context, despite setting aside the demand for clearances to M/s. NHS. The Tribunal acknowledged this error as apparent on the face of the record and modified the final order to rectify the mistake by excluding any mention of M/s. NHS in the confirmation of duty demand for M/s. Anand.

2. Admissibility of Statement without Cross-Examination:
The department filed a Rectification of Mistake (ROM) application regarding the admissibility of a statement made by Shri Natarajan without cross-examination. The department's representative argued that the Tribunal wrongly observed that cross-examination was not allowed, whereas the appellant had not even requested cross-examination. The Tribunal recognized this mistake as well and referred to Section 9D of the Central Excise Act, 1944, which mandates the examination of a person for their statement to be admissible as evidence. The Tribunal corrected the final order by modifying the statement to reflect that the allegations made in the proceedings would not be sustainable due to the lack of examination of Shri Natarajan as required by Section 9D.

In conclusion, the Tribunal addressed and rectified the errors in the Final Order related to duty demand for clearances made to M/s. NHS and M/s. Anand, as well as the admissibility of a statement without cross-examination. Both the appellant's and the department's ROM applications were allowed, and the Final Order was modified accordingly to rectify the identified mistakes.