1999 (3) TMI 333 - AT - Central Excise

Issues Involved:
1. Whether the Tribunal is empowered to recall its final order based on a subsequent Supreme Court judgment.
2. Whether the application for rectification of mistakes apparent on the record is valid.
3. Whether the Tribunal has the power to review its own orders.

Detailed Analysis:

Issue 1: Empowerment of Tribunal to Recall Final Order Based on Subsequent Supreme Court Judgment
The primary issue in this case is whether the Tribunal can recall its final order based on a subsequent judgment by the Supreme Court. The Tribunal initially denied the benefit of Notification No. 40/85 to the assessee based on an earlier Tribunal decision. However, the Supreme Court later reversed this earlier decision, holding that the exemption to Ammonia used in the manufacture of Melamine through Molten Urea is available under Notification 40/85.

The Tribunal noted that in matters under the Income-tax Act and Wealth-tax Act, rectification applications can be based on subsequent Supreme Court decisions if no further investigation of facts is required. This principle was applied in cases like S.A.L. Narayana Row v. Model Mills Nagpur Ltd., where the Supreme Court upheld the rectification of an order based on a subsequent judicial pronouncement.

The Tribunal concluded that since the Supreme Court's judgment applies directly to the present case and no further investigation is needed, there is an error apparent on the face of the record. Therefore, the Tribunal rectified its final order, granting the benefit of Notification 40/85 to the assessee.

Issue 2: Validity of Application for Rectification
The application for rectification was filed under Section 35C(2) of the Central Excises and Salt Act, 1944. The learned Counsel for the appellant argued that the Tribunal's order contained an apparent mistake because it was based on a decision that the Supreme Court later reversed. The Tribunal agreed, citing several precedents where rectification was allowed based on subsequent judicial pronouncements.

The Tribunal referred to various cases, including Parshuram Pottery Works Co. Ltd. v. D.R. Trivedi and Kil Kotagiri Tea and Coffee Estates Co. Ltd. v. Income-tax Appellate Tribunal, where rectification applications were upheld based on subsequent Supreme Court decisions. The Tribunal found that the principle of these decisions could be directly applied to the present case, validating the application for rectification.

Issue 3: Tribunal's Power to Review Its Own Orders
The Vice President of the Tribunal expressed a differing view, questioning whether the Tribunal has the power to recall its order based on a subsequent Supreme Court judgment. He argued that the Tribunal does not have the power of review, only the power to rectify mistakes apparent on the face of the record. The Vice President noted that the Tribunal's order was correct based on the law in force at the time it was passed and suggested that the application might be an attempt to review the order under the guise of rectification.

The Vice President cited decisions like Dokka Samuel v. Dr. Jacob Lazarus Chelly and Deeksha Suri v. Income Tax Appellate Tribunal, which held that omission to cite an authority of law is not a ground for reviewing a prior judgment. He proposed referring the matter to a Larger Bench to settle the issue definitively.

Conclusion:
In the final analysis, the majority view held that the application for rectification should be accepted, allowing the benefit of Notification 40/85 to the assessee. However, due to the differing opinions on the Tribunal's power to recall its order based on a subsequent Supreme Court judgment, the matter was referred to a Larger Bench for a definitive resolution.

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