1989 (3) TMI 215 - AT - Central Excise

Summary

Issues Involved:
1. Whether the process of de-polymerisation is different from the process of recycling for the purpose of exemption Notifications No. 18/84-CE and 36/85-CE.
2. Whether there was suppression of facts by the appellants, warranting the application of a longer time-limit beyond six months for demanding Central Excise duty.

Issue-wise Detailed Analysis:

1. Difference Between De-polymerisation and Recycling:
The primary issue in this appeal was whether the process of de-polymerisation and the process of recycling are identical for the purposes of exemption under Notifications No. 18/84-CE and 36/85-CE. The appellants argued that de-polymerisation and recycling were the same, thus entitling them to the exemption. However, the Department contended that these processes were different, and the appellants were not eligible for the exemption. The Tribunal noted that the earlier decision in Order No. 160-161/88-D dated 17-2-1988 did not address the distinction between de-polymerisation and recycling. The earlier order dealt with whether waste arising after the emergence of filament and before it was wound on the cops was considered waste during the manufacture of nylon yarn. Therefore, the Tribunal concluded that the issues in the present case were different from those in the earlier decision, and it was incorrect to say that the earlier order covered the present case.

2. Suppression of Facts and Extended Time-limit for Duty Demand:
Another significant issue was whether the appellants had suppressed facts by not declaring in the classification list that they would recover caprolactum from nylon waste through de-polymerisation. The Department issued a show cause notice on 14-1-1987, demanding duty for the period from December 1984 to October 1985, beyond the normal period of limitation, based on the alleged suppression of facts. The Tribunal observed that the earlier decision did not address the issue of suppression of facts or the extended time-limit for demanding duty. Therefore, the Tribunal found that the issues in the present case were distinct and required a separate examination on merits.

Rectification of Mistake:
The Tribunal acknowledged that an error had occurred in orally pronouncing the operative part of the judgment on 1-9-1988, as it had lost sight of the material differences between the issues in the present appeal and the earlier decision. Under Section 35C(2) of the Central Excises and Salt Act, the Tribunal has the power to rectify any mistake apparent from the record. The Tribunal referred to its decision in 1984 (15) E.L.T. 482 (Tribunal) and various judgments under the Income-tax Act, which supported the view that a judicial tribunal could recall and rectify its order if it was obtained by fraud, palpable mistake, or in utter ignorance of a statutory provision. The Tribunal concluded that the mistake was apparent on the face of the record and went to the root of the order. Therefore, it decided to rectify the error by recalling the order and rehearing the matter on merits.

Distinguishing Supreme Court Judgment:
The appellants relied on the Supreme Court judgment in AIR-1988-SC-371, arguing that the Tribunal could not recall its order and rehear the appeal on merits. However, the Tribunal distinguished this judgment, noting that there were no exceptional circumstances in the Supreme Court case that justified recalling the judgment. In the present case, there were exceptional circumstances, as the issues in the earlier decision were completely different from those in the present case. The Tribunal found that the error in the present case was apparent on the record, and the ratio of the Supreme Court judgment did not apply.

Conclusion:
In light of the foregoing discussions, the Tribunal recalled the operative portion of its order orally pronounced on 1-9-1988 and directed the Registry to list the appeal for hearing on merits as early as possible.