2013 (10) TMI 1193 - HC - Central Excise

Application for Rectification u/s 35C(2) of the Central Excise Act, 1944 Held that - It is an admitted position that what has been recorded by the Tribunal is the correct record - The Tribunal has noted at more than one place that the ground on which the application for rectification was moved, was not advanced either in the oral submissions or for that matter, in the written submissions - the order of the Tribunal declining to entertain the application for rectification does not suffer from any error - There was no error apparent on the face of the order of the Tribunal which would have justified the exercise of the jurisdiction under Section 35C(2) of the Central Excise Act, 1944 - The appeal does not disclose any substantial question of law Decided against Appellant.

Summary

Issues:
Appeal against Tribunal's decision on rectification application under Section 35C(2) of the Central Excise Act, 1944; Duty of Tribunal to consider all grounds raised in Memorandum of Appeal; Applicability of previous judgments on similar issues.

Analysis:
The appeal before the High Court stemmed from the Tribunal's rejection of an application for rectification under Section 35C(2) of the Central Excise Act, 1944. The appellant had filed the rectification application based on certain grounds raised in the Memorandum of Appeal that were not addressed in the Tribunal's order. The Tribunal, however, noted that these grounds were not advanced during the oral or written submissions, leading to the rejection of the rectification application.

The Counsel for the appellant contended that the Tribunal should have considered all grounds raised in the Memorandum of Appeal, regardless of whether they were argued during the submissions. The High Court disagreed, stating that the Tribunal is duty-bound to address only those grounds placed in issue during oral arguments. The decision on which grounds to press before the Tribunal lies within the professional judgment of the Counsel representing the party. Therefore, the Tribunal cannot be faulted for not addressing a submission that was not advanced during the appeal hearing.

The appellant's Counsel cited a Supreme Court decision and previous judgments from different High Courts to support their argument. However, the High Court found these cases distinguishable from the present situation. The Court emphasized that the Tribunal's decision not to entertain the rectification application did not contain any apparent error that would justify intervention under Section 35C(2) of the Central Excise Act, 1944.

The High Court clarified that since the appeal against the original Tribunal order had been filed before the Supreme Court, they refrained from expressing any opinion on the merits of the issues dealt with by the Tribunal. Consequently, the High Court concluded that the appeal did not raise any substantial question of law and dismissed the appeal accordingly.