1995 (2) TMI 164 - AT - Central Excise

Summary

Issues:
Application for Rectification of Mistake under Section 35 C of the CESA - Imposition of penalty under Rule 151 of the Central Excise Rules - Applicability of Rule 151 to unmanufactured tobacco - Mistake apparent on the record - Review petition - Tribunal's power to review its own order.

Analysis:
The applicants filed an application under Section 35 C of the CESA seeking rectification of a mistake in the order regarding the imposition of penalty under Rule 151 of the Central Excise Rules. The ld. Advocate for the applicants argued that the penalty under Rule 151 was not sustainable as it was proposed in a show cause notice dated 29-9-1979, when Rule 151 was not applicable to unmanufactured tobacco. He contended that the provisions of Chapter VII, including those relating to removal of goods, were extended to unmanufactured tobacco by Notification No. 82/77, which was rescinded by Notification 39/79. The ld. Advocate cited precedents to support his argument, emphasizing that the mistake was apparent on the record and required rectification.

The Tribunal noted the arguments presented by both sides. The ld. SDR countered the applicant's plea, stating that the issue raised was contentious, and it could not be definitively concluded that Rule 151 was not applicable at the time of the show cause notice. The Tribunal emphasized that for a mistake to be rectified under Section 35-C, it must not only be a mistake but also be apparent from the record. The Tribunal clarified that the application was akin to a review petition, and since the Tribunal lacked the power to review its own order, the plea raised by the applicants could not be considered a mistake apparent on the record. The Tribunal concurred with the ld. DR's argument that the plea was neither raised nor considered during the initial proceedings, and therefore, it could not be rectified as a mistake.

In conclusion, the Tribunal rejected the application for rectification of mistake under Section 35 C of the CESA. The Tribunal held that the imposition of penalty under Rule 151 of the Central Excise Rules was justified based on the facts and circumstances of the case. The Tribunal reiterated that a clear finding supporting the imposition of penalty could not be deemed a mistake apparent from the record warranting rectification. The Tribunal emphasized that it did not have the authority to review its own order, thereby dismissing the applicant's plea for rectification.