2020 (10) TMI 729 - AT - Central Excise

Condonation of Delay in filing the miscellaneous application for restoration of appeal - rectification of mistake - HELD THAT - There is no delay in filing the miscellaneous application for restoration of appeal inasmuch as upon receipt of the Final Order, the applicant /respondent had filed the appeal before the Hon ble Bombay High Court, which was withdrawn with liberty to file a rectification application before the Tribunal. Hence, the miscellaneous application is disposed of, holding that there is no delay in filing the said application before the Tribunal. Rectification of Mistake - error apparent on the face of record or not - HELD THAT - The submissions made in the said miscellaneous application was considered by the Tribunal in specifically observing at paragraph 5 therein that during the disputed period 2005-06, the respondent did not refund the disputed duty amount to its buyers. Such findings were recorded by the Tribunal upon examination of the relevant documents including the invoices etc. available in the case file during the course of hearing of appeal. Thus, it cannot be said that there is apparent mistake in the said order passed by the Tribunal, which can be rectified as prayed for by the applicant/respondent - there is no merit in the miscellaneous application filed for rectification of mistake - application dismissed.

Summary

Issues:
1. Restoration of appeal and rectification of mistake in the Final Order dated 28.05.2018 by the Appellate Tribunal CESTAT Mumbai.

Analysis:
The judgment by Hon'ble Mr. S.K. Mohanty, Member (Judicial) of the Appellate Tribunal CESTAT Mumbai dealt with two miscellaneous applications filed by M/s Ajay Bio-Tech (India) Ltd. The first application sought restoration of appeal and the second one sought rectification of mistake in the Final Order No. A/86733/2018 dated 28.05.2018. The applicant/respondent filed the restoration application as a precaution due to anticipated delay in filing. The Tribunal found no delay in filing the restoration application as the appeal was initially filed before the Hon'ble Bombay High Court and later withdrawn with liberty to file a rectification application before the Tribunal. Consequently, the restoration application was disposed of.

Regarding the second application for rectification of mistake in the Final Order dated 28.05.2018, the Tribunal noted that the submissions made in the application were already considered in the Final Order. Specifically, the Tribunal had observed in paragraph 5 of the Final Order that during the disputed period of 2005-06, the respondent did not refund the disputed duty amount to its buyers. This observation was based on an examination of relevant documents, including invoices, during the appeal hearing. The Tribunal concluded that there was no apparent mistake in the order that warranted rectification. Therefore, the application for rectification of mistake was dismissed.

In conclusion, both miscellaneous applications filed by the applicant/respondent were disposed of by the Tribunal. The restoration application was found to have no delay and was thus disposed of, while the rectification application was dismissed as the Tribunal determined that there was no merit in rectifying the alleged mistake in the Final Order dated 28.05.2018. The order was pronounced in open court on 11.09.2020.