2018 (10) TMI 460 - AT - Central Excise

Rectification of Mistake - One of the grievances of the appellant is that the complete facts leading to the issue of impugned order and the Final Order has not been recorded by the Tribunal in the Final Order - Held that - Even though such recording would make the final order more complete, we are of the view that the non-recording of certain facts does not impact the conclusion arrived at in the final order - there is no need to modify the order. In para 3 of the final order it has been mentioned that the appellant changed the classification w.e.f. February, 2006 - Held that - The said date should be correctly recorded as January, 2009. Hence we order amendment of the wording February, 2006 appearing in the para 3 to be read as January, 2009 . It has been submitted that in para 6 of the Final Order, the change in classification from Chapter 39 as recorded gives a wrong impression - Held that - Necessary modification carried out. It has also been submitted that all the arguments advanced by the appellant against the finding of suppression of fact in the impugned order has not been considered - Held that - This aspect has been considered and discussed in para 5 of the Final Order. Consequently, we find no reason to modify the order in as much as the argument advanced amounts to review of the order and cannot be considered as rectification of mistake. ROM application allowed in part.

Summary

Issues: Appeal against dismissal of the appeal, incomplete recording of facts in the Final Order, incorrect date mentioned for product reclassification, misinterpretation of classification change, failure to consider arguments against suppression of facts.

Analysis:
1. Incomplete Recording of Facts: The appellant contended that crucial facts were omitted in the Final Order, specifically regarding the challenge to the Commissioner (Appeals) order and subsequent classification under Chapter 39, which was allowed. The Tribunal acknowledged the incomplete recording but held that it did not affect the final conclusion, thus no modification was deemed necessary.

2. Incorrect Date of Reclassification: The appellant pointed out an error in the Final Order mentioning the date of product reclassification as February 2006 instead of January 2009. The Tribunal accepted this correction and ordered an amendment to rectify the date in the Final Order.

3. Misinterpretation of Classification Change: The appellant raised concerns over the Tribunal's observation implying a sudden change in classification to claim an exemption. The Tribunal modified the wording in the Final Order to clarify that the change was not abrupt but occurred later, addressing the appellant's contention.

4. Failure to Consider Suppression of Facts: The appellant argued that the Tribunal did not adequately address their submissions against the finding of suppression of facts by the lower authority. Upon review, the Tribunal found that this aspect was indeed considered and discussed in the Final Order, leading to the conclusion that no modification was required as it did not constitute a mistake but rather a review of the order.

In conclusion, the Tribunal partially allowed the Review Application, making amendments to the Final Order to correct the date of reclassification and clarify the classification change observation. The Tribunal maintained that the non-recording of certain facts did not impact the final decision and that the arguments against suppression of facts were duly considered, leading to the dismissal of the appeal for modification.