2019 (5) TMI 1513 - HC - Central Excise

Rejection of ROM application - time limitation - Section 35C(2) in the Central Excise Act, 1944 - HELD THAT - After a period of more than 17 years the appellant filed a second fresh application for rectification of mistake in the order passed on 04.01.2000. The plea taken by the assessee is that the order was received on a certain date. However, the provisions of Section 35C(2) of the Act, which provides for rectification of mistake is very clear. The assessee had participated in the matter and had moved a second application virtually seeking a review of the earlier order. The assessee sought to extend the limitation under the provisions, which is a period of six months by saying that he was not in receipt of the said order - Upon a reading of the application itself it seems that the mistake, which he was seeking to correct was not in the nature of a mistake apparent on the face of record but virtually he sought a review in the original order passed by the Tribunal. The application was bound to be rejected for reasons that limitation could not have been extended and there was no mistake, which was sought to be corrected, which was apparent from the face of the record - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Rejection of Misc. Application without deciding on merits
2. Timing of filing Misc. Application after a lapse of 17 years
3. Ignoring directions given while hearing the Misc. Application
4. Rectification of Mistake Application on the order passed

Analysis:
1. The appellant filed an appeal under Section 35-G of the Central Excise Act against the Tribunal's order. The Tribunal had dismissed the application for Rectification of Mistake under Section 35C(2) of the Act, stating that there was no mistake in the original order. The appellant argued that the Tribunal should have decided the Misc. Application on its merits. The High Court noted that the appellant was essentially seeking a review of the original order, and the Tribunal was justified in rejecting the application as the mistake was not apparent on the face of the record. The Court affirmed the Tribunal's decision.

2. The appellant filed a second application for rectification of mistake after a period of more than 17 years from the original order. The appellant claimed that they had not received the order in a timely manner and sought an extension of the limitation period. However, the Court held that the provisions of Section 35C(2) were clear, and the appellant was essentially seeking a review of the original order. The Court agreed with the Tribunal's decision to reject the application due to the lack of a mistake apparent on the face of the record.

3. The appellant argued that the Tribunal ignored its own directions given during the hearing of the Misc. Application. However, the High Court found that upon reviewing the application, it was clear that the appellant was seeking a review of the original order rather than rectifying a mistake. Therefore, the Court upheld the Tribunal's decision to reject the application based on the facts and circumstances of the case.

4. The Court emphasized that the appellant's second application for rectification of mistake was essentially a request for a review of the original order, rather than rectifying a mistake apparent on the face of the record. The Court found no reason to interfere with the Tribunal's decision and affirmed the order. The questions of law were decided against the appellant in favor of the revenue, and the appeal was dismissed without costs.