2007 (12) TMI 61 - AT - Central Excise

Application for rectification of mistake - If the revenue failed to satisfy the Tribunal on specific query on the date of final hearing of the appeal, it cannot be said that there is an error apparent on the face of the record however terra firma on which our earlier order dated 28-5-2007 was passed, no longer exists - so in the interest of justice, as the order of Tribunal is passed on facts, which are erroneous, is recalled and the appeal is restored to its original number

Summary

Issues:
Rectification of mistake regarding the order of the Tribunal dated 28-5-2007.

Analysis:
The Tribunal initially disposed of appeal Nos. E/2419 & 2420/02, stating that the refund claims were filed as a consequence of specific orders allowing the appeal of the assessee against the denial of Modvat credit. The revenue was given time to produce any appeal against these orders, but as no documents were provided, the Tribunal rejected the appeals filed by the revenue, deeming them devoid of merits. The revenue later filed an application for rectification of mistake, arguing that the orders relied upon for the refund were successfully challenged. The revenue contended that the Tribunal's order was erroneous due to the successful challenges against the orders granting the refund.

The revenue reiterated that the orders granting the refund were under challenge and were decided by the CESTAT in subsequent appeals. The CESTAT allowed departmental appeals against the specific orders, leading to the setting aside of the orders granting the refund. The revenue emphasized that as the departmental appeals were upheld, the original orders granting the refund were not legal and needed to be set aside. The revenue also pointed out that the Tribunal did not consider its earlier orders while passing the impugned order, which was deemed an error apparent on the record.

The advocate representing both appellants argued that there was no error apparent on the face of the record. He contended that the Tribunal had given sufficient time to the revenue to produce appeals against the orders of the Commissioner (Appeals), which they failed to do. Citing relevant legal precedents, the advocate asserted that the Tribunal's decision was in line with established legal principles. After considering the submissions and records, the Tribunal found no error apparent on the face of the order and dismissed the application for rectification of mistake.

However, acknowledging that the basis of the earlier order no longer stood due to the successful challenges against the Commissioner (Appeals) orders, the Tribunal recognized the need for substantial justice and decided to recall the order dated 28-5-2007. In the interest of justice, the appeal was restored to its original number, and the Registry was directed to list the appeals for hearing. The Tribunal emphasized that substantial justice should not be denied on technicalities, leading to the decision to recall the earlier order.

In conclusion, the Tribunal's decision highlighted the importance of ensuring justice is served despite technicalities. The recall of the earlier order and the restoration of the appeal for hearing aimed to address the changes in circumstances resulting from the successful challenges against the orders granting the refund.