2009 (8) TMI 277 - AT - Central Excise

Application for Rectification of Mistake (ROM) - appellant s main grievance is that their submission that physician s sample cannot be held as excisable goods inasmuch as they do not satisfy the test of marketability in view of the provisions under Drugs and Cosmetics Rules, 1995, does not stand considered by the Tribunal - we find that the Tribunal, while dealing with the above contention of the appellant, has given a detailed finding in his order. By making a distinction between the fact as to whether such physician s samples are allowed to be sold or not, it has been held that the marketability depends upon capability or suitability of sale and use - As such, the contention of the learned advocate that the disputed issue does not stand decided by taking note of the fact that the sale was banned under Drugs Act, carries no weight inasmuch as the prohibition of sale of goods in terms of particular Act would not mean that said product is not capable of being sold. As such, we are of the view that the decision arrived at by the Tribunal cannot be held to be a mistake and present application seeking rectification of mistake of the same would, in fact, amounts to seeking review of the order, which is not permissible - It is well settled law that rectification of mistake application operates in a limited area and is relatable only to those mistakes which are apparent from the facts of the record. Conclusions arrived at after a long drawn process of arguments by both sides, cannot be held to be falling within arena of mistake so as to rectify the same. - We, accordingly, find no merits in the ROM application and reject the same.

Summary

The Appellate Tribunal CESTAT, Ahmedabad, consisting of Ms. Archana Wadhwa and Shri B.S.V. Murthy, heard an application for Rectification of Mistake (ROM) filed by the appellant in relation to a previous order that rejected their appeal. The appellant's main contention was that physician's samples should not be considered excisable goods due to the lack of marketability under the Drugs and Cosmetics Rules, 1995. The Tribunal, in its detailed finding, concluded that the marketability of physician's samples depends on their capability or suitability for sale and use, and the prohibition of sale under a specific Act does not necessarily mean the product is incapable of being sold. The Tribunal refused to consider the ROM application, stating that it amounted to seeking a review of the order, which is impermissible. The Tribunal referenced a Supreme Court decision to emphasize that rectification of mistake applications can only address errors that are apparent from the record. Ultimately, the ROM application was rejected, and the decision was pronounced on August 4, 2009.