1990 (11) TMI 278 - AT - Central Excise

Summary

Issues:
Rectification of Mistake Application maintainability when a final order is not passed under Section 35C(1) of the Central Excises & Salt Act, 1944.

The judgment pertains to a Rectification of Mistake (R.O.M.) Application arising from a Tribunal's Misc. Order. The Respondent raised a preliminary objection, contending that the Rectification of Mistake Application was not maintainable as the Order in question was not final and did not fall under Section 35C(1) of the Central Excises & Salt Act, 1944. The Respondent argued that since there was a difference of opinion between the Members, the order was a single Member decision subject to reference to a 3rd Member under relevant provisions. The Appellant's representative acknowledged this argument and requested permission to withdraw the Rectification of Mistake Application, which the Respondent did not oppose.

After hearing both parties and examining the legal provisions, the Tribunal referred to Section 35C(2) of the Central Excises & Salt Act, 1944. The section allows for amending an order within four years to rectify any apparent mistake, provided it is a final order under Section 35C(1). The Tribunal noted the difference of opinion among Members, leading to a reference to the President as per statutory provisions. Citing Section 35D(1) and Section 129C(5) of the Customs Act, 1962, which apply to the Tribunal's functions under the Central Excises & Salt Act, 1944, the Tribunal concluded that where a matter is referred to the President due to a difference of opinion, a Rectification of Mistake Application is not maintainable. Consequently, the Tribunal granted permission for the withdrawal of the Rectification of Mistake Application and dismissed it for statistical purposes.

In summary, the judgment clarifies that a Rectification of Mistake Application is only maintainable under Section 35C(2) of the Central Excises & Salt Act, 1944 when a final order has been passed under Section 35C(1). In cases where there is a difference of opinion among Members leading to a reference to the President, the application for rectification is not maintainable. The Tribunal, in this instance, allowed the withdrawal of the application and dismissed it accordingly.