2001 (11) TMI 152 - AT - Central Excise

Summary

Issues involved:
1. Whether the omission to consider a ground in the appeal, not argued before the Bench, amounts to a mistake requiring rectification under Section 35C(2) of the Act.

Comprehensive analysis:
The judgment of the Appellate Tribunal CEGAT, Mumbai, involved a consideration of whether the failure to address a ground in the appeal, not argued before the Bench, constitutes a mistake necessitating rectification under Section 35C(2) of the Act. The Tribunal's order dated June 11, 1999, had addressed only the grounds argued by the Counsel, omitting to consider ground (m) in the memorandum of appeal, which contended that an erroneous refund payment cannot be recovered without a notice under Section 11A within the specified time limit. The Tribunal had not given a finding on this ground as it was not raised during the hearing. The applicant sought rectification, arguing that the failure to consider a ground not expressly given up amounts to a mistake under the Act. The Tribunal deliberated on the conflicting case law on this issue, noting the lack of uniformity in court decisions. Reference was made to the Madras Bench's decision in Amco Batteries Ltd. v. CCE, where a similar rectification application was rejected, emphasizing that the ground not raised during the hearing could not be rectified under Section 35C. The Tribunal highlighted the necessity of issuing a notice under Section 11A to recover erroneously granted refunds, as confirmed by the Supreme Court and reiterated in various judgments and circulars. The Tribunal considered the argument that rectifying such omissions could lead to continuous litigation and burden the Tribunal excessively, ultimately concurring with the Madras Bench's conclusion that no mistake existed in such scenarios.

Furthermore, the Tribunal examined the precedent that a court's failure to consider a legal provision constitutes a rectifiable mistake under Section 35C(2), citing relevant case law. It emphasized that ignoring settled legal principles amounts to an apparent mistake requiring rectification. The Tribunal also referenced the judgment in CCE v. EID Parry (India) Ltd., highlighting the broad definition of "record" and the Federal Court's stance on correcting mistakes due to oversight. The Federal Court's ruling emphasized that apparent mistakes on record, regardless of their origin, should be rectified once brought to the Bench's attention. The Tribunal distinguished between glaring, obvious mistakes and those discovered after extensive debate, stating that only the former warrants rectification under the Act. The judgment concluded that the mistake in not considering the settled law was glaring and required correction, as it was a clear oversight that would have impacted the appeal's outcome.

In conclusion, the Tribunal allowed the application for rectification, recalling its order and relisting the appeal for further hearing. The judgment underscored the importance of rectifying apparent mistakes on record, particularly those related to overlooking settled legal principles, to ensure the proper administration of justice.