1991 (4) TMI 263 - AT - Central Excise

Summary

Issues:
1. Whether CEGAT can recall/rectify its own order without granting an opportunity to the other party and whether it amounts to review under the Central Excises and Salt Act, 1944.
2. Whether CEGAT can admit a miscellaneous petition when there is a specific provision for filing Reference Application under Sec. 35G(1) of the Act.

Analysis:

1. The Collector of Central Excise filed two applications before the Appellate Tribunal CEGAT, challenging orders-in-appeal. The Tribunal had initially set aside the orders. However, a Miscellaneous Application was filed by the respondents, claiming they were not served with copies of the order and had not received a hearing notice. The Tribunal recalled its earlier orders after considering arguments and a Delhi High Court judgment stating that the Tribunal can cancel an order due to procedural defects, not for rehearing on merits.

2. The Collector argued that an ex parte order does not constitute a mistake apparent from the record but a procedural lapse. Referring to judgments from the Madras and Calcutta High Courts, it was contended that rectification cannot include the power to review. The respondents argued that rectification is a special power under Section 35C(2) to correct mistakes when brought to the Tribunal's notice, citing a Tribunal decision supporting this view.

3. During the hearing, the Collector reiterated arguments from the Reference Applications.

4. The respondents' counsel argued that the Tribunal recalled the ex parte order due to non-receipt of documents, falling under Section 35C(2). A Tribunal decision was cited to support the view that the Tribunal cannot review its own order.

5. The Tribunal reviewed arguments from both sides, considering previous judgments and the Delhi High Court decision. It compared the present case with past cases involving recall of orders due to procedural irregularities, emphasizing the Tribunal's power to correct mistakes when brought to its notice.

6. Various cases were discussed where Tribunals and High Courts allowed the recall of orders due to procedural defects or lack of proper opportunity for the parties to present their case. The Tribunal's ancillary power was highlighted to rectify procedural aspects, not to review the merits of the case.

7. The Tribunal found that the present case, decided ex parte due to non-service of documents, differs from cases where orders were recalled for not considering certain facts. It emphasized the need to rectify procedural deficiencies, such as non-service of appeal documents, justifying the recall of the ex parte order.

8. Ultimately, the Tribunal dismissed the Reference Applications, concluding that no legal questions arose requiring referral to the High Court under Sec. 35G, based on settled legal principles and judgments analyzed during the proceedings.