2018 (8) TMI 1584 - HC - Central Excise

Rectification of Mistake - Doctrine of merger - Whether the Tribunal is right in rejecting the rectification application filed by the appellant establishing the legal infirmity that Rule 9B of Central Excise Rules can no longer be pressed into service after amendment to Rule 173-B of Central Excise Rules and show cause notice under Section 11-A of the Act is mandatory and the adjudication order without issue of a notice, is a patent error on the fact of it? Held that - It appears that it was not brought to the notice of the Hon ble Division Bench, though the appeal was by the other Assessee. This should have been brought to the notice of the Hon ble Division Bench, because it is the case of both the Assessees that they are manufacturing the same product - The Hon ble Division Bench having passed the judgement dated 19.10.2011, the Tribunal would have absolutely no jurisdiction to entertain an application for rectification, because the correctness of the order passed by the Tribunal dated 04.05.2010 has been decided by the Hon ble Division Bench, though at the instance of the other Assessee and the doctrine of Merger would apply - the Tribunal should have dismissed the application for rectification on the ground that it is not maintainable. Appeal dismissed - decided against assessee.

Summary

Issues involved:
Appeal against Tribunal's order for rectification of mistake in a customs case.

Analysis:
1. The appeal was against the Tribunal's order rejecting the rectification application by the appellant. The Tribunal noted that the appellant sought to review the earlier order, which was dismissed. The substantial question of law was whether the Tribunal was right in rejecting the rectification application based on legal infirmities in the Central Excise Rules and the necessity of a show cause notice under Section 11-A of the Act.

2. The appellant argued that the Tribunal did not consider crucial points, such as the absence of a provision in Rule 173B to approve declarations provisionally and the requirement of a Show Cause Notice (SCN) for the disputed period. Reference was made to a letter from the Directorate of Drugs Control. However, the Tribunal found the application for rectification not maintainable due to procedural reasons and the failure to file an appeal against the common order with another party involved.

3. The Division Bench remanded a question related to the period of limitation for issuing a show cause notice back to the Tribunal in a related appeal. The remand was based on grounds of suppression and lack of consideration of relevant provisions by the Tribunal. The appellant in the related appeal had raised this issue, leading to the remand.

4. The order of remand did not materialize due to an appeal to the Supreme Court by the other party involved. The Tribunal was found to have no jurisdiction to entertain the rectification application as the correctness of the earlier order had been decided by the Division Bench. The Tribunal was expected to dismiss the rectification application, as the doctrine of Merger applied. The grounds raised in the rectification application required extensive reasoning, unsuitable for a review application.

5. Consequently, the civil miscellaneous appeal was dismissed, and the substantial question of law was answered against the appellant and in favor of the Revenue. The judgment clarified that the observations made should not prejudice the rights of either party involved in the case.