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2018 (9) TMI 252 - AT - Service TaxRectification of mistake - Section 35C(2) of the Central Excise Act, 1994 - Since both the Members who have originally decided the Appeals have been transferred out of Mumbai, and it would not have been administratively and economically feasible and viable to place these ROM applications before the bench comprising of the same two members, this, matter has been listed before this bench and taken up for disposal. Held that - From the wordings used in the Section it is quite evident that Appellate Tribunal can rectify any mistake apparent from record by amending the order passed by it. For invoking the jurisdiction under this section it has to be shown that what is being rectified is a mistake apparent from record - It is not the case of the Applicant that the pleas raised by them in appeal or argument have not been considered by the bench while disposing of the appeal, but they have filed this rectification application on the ground that tribunal has failed to consider and give a specific finding. In their appeal and during the course of arguments Appellants have raised the issue of limitation and has after considering the submissions have given a finding of fact that extended period of limitation has been rightly invoked. Now this finding of fact is sought to be rectified by this application for rectification of mistake. The powers vested in tribunal in terms of Section 35C(2) are very limited to rectification of mistakes without re-appreciating the entire facts, evidences and law on the subject matter of appeal. There are no merits in the applications for rectification of mistake filed in terms of Section 35C (2) of the Central Excise Act, 1944 in the present case - ROM application dismissed.
Issues Involved:
1. Jurisdiction and composition of the bench for hearing Rectification of Mistake (ROM) applications. 2. Definition and scope of "mistake apparent from record" under Section 35C(2) of the Central Excise Act, 1944. 3. Whether non-consideration of certain decisions and arguments constitutes a "mistake apparent from record". 4. The appropriate forum for challenging findings of fact. Issue-wise Detailed Analysis: 1. Jurisdiction and Composition of the Bench: The ROM applications were filed against a final order passed by a different bench, whose members had since been transferred. According to Rule 31A of the CESTAT Procedure Rules, 1982, the same bench should ideally hear the ROM applications. However, the Supreme Court in ELPRO International Vs Collector of Central Excise, Pune held that if the original members are unavailable due to retirement, transfer, or other reasons, the President of the Tribunal can direct a different bench to hear the application. Thus, the current bench was constituted to hear the ROM applications due to practical and administrative constraints. 2. Definition and Scope of "Mistake Apparent from Record": Section 35C(2) of the Central Excise Act, 1944, allows the Appellate Tribunal to rectify any mistake apparent from the record within six months from the date of the order. The Supreme Court in Assistant Commissioner Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange defined a "mistake apparent from the record" as a patent, manifest, and self-evident error that does not require elaborate discussion of evidence or argument. It should be an error which strikes on mere looking and does not need a long-drawn-out process of reasoning. 3. Non-consideration of Certain Decisions and Arguments: The appellant argued that the non-consideration of certain decisions on limitation, which were presented during the hearing, constituted a mistake apparent from the record. They cited various cases to support their claim that non-consideration of material facts is a mistake justifying recall and rectification of the order. However, the Tribunal found that the issues raised were considered, and the findings on the extended period of limitation were based on the facts of the case. The Tribunal held that whether the extended period of limitation can be invoked is dependent on the facts and not solely on case law. The Tribunal also referenced the Delhi High Court's decision, which stated that a finding of fact does not become perverse merely because another conclusion was possible. 4. Appropriate Forum for Challenging Findings of Fact: The Tribunal emphasized that if the appellant is aggrieved by the findings of fact, the appropriate remedy is to file an appeal before the higher authority, not a ROM application. The Tribunal cited the larger bench decision in Dinkar Khindria Vs Collector, which held that rectification of mistake does not envisage rectification of an alleged error of judgment. The scope of rectification is limited to correcting obvious and patent mistakes, not reappraising evidence or rearguing the case. Conclusion: The Tribunal concluded that the ROM applications did not show any mistake apparent from the record as defined under Section 35C(2) of the Central Excise Act, 1944. The applications were attempts to reargue the case, which is not permissible under the guise of rectification. Therefore, the applications for rectification of mistake were dismissed. The operative portion of the order was pronounced in court.
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