2010 (6) TMI 236 - AT - Central Excise

Rectification of mistake - Department is seeking recall of the final order for reconsideration on the ground, incorrect appreciation of materials on record or findings which can be disclosed to be not in consonance with the materials on records. Held that on the basis of elaborate arguments in relation to appreciation of the materials on record, cannot be ground for review of order or for recall of order by the Court or Tribunal who has passed such order.

Summary

Issues:
Seeking recall of final order for reconsideration based on three grounds: 1. Non-issuance of show cause notice to the manufacturer. 2. Incorrect observation about taking credit on duty paying documents. 3. Ineligibility for modvat credit due to difference in description of raw materials.

Analysis:
1. The Department sought recall of the final order dated 24th July, 2008, citing three grounds. Firstly, they argued that the observation regarding the non-issuance of a show cause notice to the manufacturer was inaccurate. Secondly, they contended that the observation about the respondents taking credit on duty paying documents was incorrect as the raw materials used differed from those mentioned in the invoices. Thirdly, they claimed that modvat credit could not have been availed due to the disparity in the description of the raw materials used.

2. The Department referred to a High Court order and argued that the findings of the order dated 24th July, 2008, were contrary to the materials on record, warranting a recall. However, the respondents' advocate argued that the order's findings were consistent with the record, and the claim amount was minimal, making recall unnecessary.

3. The Tribunal emphasized that an order can only be recalled in cases of apparent errors or mistakes by the Tribunal itself. Incorrect appreciation of evidence or findings incongruent with the record, without a clear mistake, do not justify a recall but may be grounds for appeal.

4. The Tribunal noted that the order in question was pronounced in open court with both parties present, and there was no indication of a mistake pointed out during the proceedings. The finding about the show cause notice was deemed appropriate as new evidence supporting its issuance was only presented later.

5. Regarding the other grounds, related to the assessment of materials on record, the Tribunal clarified that even if there was an incorrect assessment, it does not warrant a recall. Challenges to such assessments should be pursued through an appeal process rather than a recall.

6. Ultimately, the Tribunal found no valid reason for the recall of the order dated 24th July, 2008, as no substantial case was made for it. Consequently, the application for recall was dismissed.

This detailed analysis of the judgment highlights the grounds for seeking a recall, the arguments presented by both parties, the legal principles governing such requests, and the Tribunal's reasoning for dismissing the application for recall.