2015 (10) TMI 1202 - AT - Central Excise

Rectification of mistake - Non consideration of written submission - Held that - Under Section 129B (2) the Tribunal may amend any order with a view to rectifying any mistake apparent from the record. A rectifiable mistake must be obvious and must not be such that its rectification leads to re-writing the Order on merits. Rectification should not result in review of the Order. Therefore we agree with the Ld. Counsel that non recording of the written submissions is a mistake apparent on record. At the same time we note that in our Order, we had merely remanded the matter to the Adjudicating Authority to examine the issue of unjust enrichment on the basis of facts and judicial pronouncements. - Rectification done.

Summary

Issues: ROM application against final order due to non-consideration of written submissions.

Analysis:
1. Issue: Consideration of written submissions.
- The ROM application was filed against the final order on the ground that written submissions were not considered by the Bench while recording its order.
- The appellant's counsel argued that the rectification of a mistake application can be allowed if the written submissions are not considered, citing relevant case laws.
- The respondent's representative contended that there was no apparent mistake on record requiring rectification.
- The Tribunal found that the written submissions were indeed submitted by the appellant but were not placed before the Bench while passing the order.

2. Rectification of Mistake:
- The Tribunal referred to Section 129B(2), which allows the Tribunal to amend any order to rectify any mistake apparent from the record.
- It was noted that a rectifiable mistake should be obvious and not lead to rewriting the order on merits or result in a review of the order.
- The Tribunal agreed with the appellant's counsel that the non-recording of the written submissions constituted a mistake apparent on record.
- To rectify the mistake, the Tribunal decided to add a new paragraph based on the appellant's written submissions regarding the issue of unjust enrichment in the order dated 11.2.2015.

3. Content of Written Submissions:
- The added paragraph (5.5A) included detailed content from the appellant's written submissions received on 29.01.2015.
- The submissions highlighted that the duty payable/paid on crude oil imported against certain advance licenses was borne by HPCL, making unjust enrichment inapplicable for exports made against those licenses.
- The submissions also referenced a certificate from a Chartered Accountant and cited judgments supporting the argument that unjust enrichment is not applicable for export of goods where duty paid cannot be recovered from overseas importers.

4. Decision:
- Ultimately, the ROM application was allowed in the above terms, with the Tribunal acknowledging the mistake in not considering the written submissions and taking steps to rectify the same by incorporating the relevant content in the order.

This detailed analysis of the judgment highlights the issues, legal principles applied, arguments presented, and the final decision rendered by the Appellate Tribunal CESTAT MUMBAI in response to the ROM application.