2007 (10) TMI 197 - HC - Central Excise

Application for recalling / rectification has been dismissed on the ground that the same would amount to an exercise in review jurisdiction - Before the Tribunal, matter proceeded on a concession - where the material on record was not considered, that would fall within the expression rectification and not review - impugned order is liable to be set aside and the matter is remanded back to the Tribunal for rehearing the rectification application in accordance with law.

Summary

Issues:
Challenge to Tribunal order based on failure to consider material evidence and reliance on concession made by counsel.

Analysis:
The petitioners challenged a Tribunal order dated 14-5-2007, arguing that the Tribunal failed to consider material evidence on record. The petitioners referred to a Supreme Court judgment in Collector of Central Excise, Bombay v. Bharat Bijlee Limited, highlighting that failure to consider material evidence amounts to a mistake apparent on the face of the record. The Tribunal's reliance on a concession made by counsel without considering the material on record was also contested by the petitioners. They contended that the goods in question were used for pre-fabricated buildings.

Upon hearing arguments from both parties, the Court noted that the Tribunal had relied on a previous judgment in the case of Excon Bldg. Material Mfg. Co. Pvt. Ltd. v. Commissioner of Central Excise, Bombay. The Supreme Court's observation in the latter case emphasized that the benefit of a notification is determined based on the use of the goods. The Court highlighted that the Tribunal's decision was based on a concession and not a thorough consideration of the material on record. Citing the Supreme Court judgment in Bharat Bijlee Limited, the Court concluded that the failure to consider material evidence falls within the realm of 'rectification' rather than a review.

In light of the above analysis, the Court set aside the impugned order dated 14-5-2007 and remanded the matter back to the Tribunal for rehearing the rectification application in accordance with the law. The Court made the rule absolute with no order as to costs, thereby providing relief to the petitioners and emphasizing the importance of considering all material evidence in judicial decisions.