2018 (11) TMI 1279 - AT - Central Excise

Rectification of mistake - recalling Final Order 52354/2018 dated 29.06.2018 in terms of Section 35 C (2) of Central Excise Act, 1944 read with Rule 41 of CESTAT Procedure Rules, 1982 - Held that - The ambit of the rectification is for a very limited purpose of correcting the mistakes, which are clerical or typographical or arithmetical in nature. In addition, some mistakes, which can be classified as error apparent on record due to non-application of legal precisions or due to being non-appreciation of apparent facts, that the rectification of the order is permissible. In the present Final Order, it is the observation of the ld. Member that since the order under challenge was ex-parte that an opportunity to Department is necessary for the proper decision - no alleged error is apparent on its record. It is merely the opinion of the adjudicating authority. Hence, cannot be the subject matter of Section 35 C (2) of Central Excise Act. The mere fact that the absence of Department was not the ground of appeal also does not appear to be a sustainable ground as from the order it appears that the findings in this respect are not based on the ground of appeal, but on the basis of looking into the circumstances of the case - application dismissed.

Summary

Issues: Application for rectification of mistake in Final Order

In this case, the issue revolves around the application filed for rectification of mistake in the Final Order dated 29.06.2018 under Section 35 C (2) of the Central Excise Act, 1944 read with Rule 41 of CESTAT Procedure Rules, 1982. The main contention is regarding the remand of the matter for re-consideration due to the absence of the Revenue before the Adjudicating Authority and the denial of an opportunity to present their case.

Analysis:

The applicant argued that the Final Order remanding the matter for re-consideration was based on an error apparent on record as the grounds of appeal did not include the absence of the Revenue as a basis for decision. The applicant sought rectification of the order on the grounds that the observations leading to the remand were beyond the scope of the appeal's merits. However, the Department contended that there was no error apparent, emphasizing that the remand was based on the Member's observation regarding the denial of opportunity to the Department.

Upon hearing both parties, the Member analyzed the scope of rectification, highlighting that it is limited to correcting clerical, typographical, or arithmetical mistakes, or errors apparent on record due to non-application of legal principles or non-appreciation of facts. The Member noted that the absence of the Department and the necessity of providing an opportunity were opinions of the adjudicating authority, not errors apparent on record. The allegations of clandestine removal and the dropped demand were considered serious, indicating that the observations did not constitute an error under Section 35 C (2) of the Central Excise Act.

Furthermore, the Member observed that the absence of the Department was not a ground of appeal but a consideration based on the circumstances of the case. It was concluded that the findings were not solely based on the grounds of appeal but on the overall case evaluation. Consequently, the application for rectification was dismissed as lacking merit, with the Member finding no grounds for rectification based on the arguments presented.

In conclusion, the judgment delves into the nuances of rectification of mistakes in legal orders, emphasizing the limited scope and specific criteria for rectification. The decision underscores the importance of distinguishing between errors apparent on record and matters of opinion or case evaluation in the context of appeals and remands.