2008 (3) TMI 129 - AT - Central Excise

Department application for rectification of mistake (ROM) stating that appellant firm has taken a new stand before the Tribunal which was not taken earlier & stating that Tribunal had passed the order when the departmental representative was not present no reason given by dept. for non-presence of representative since assessee has paid duty on full value & which is not under dispute, department is not permitted to seek review of order through an application of ROM application dismissed

Summary

Issues:
Rectification of mistake application filed by the Commissioner seeking a fresh order due to a new stand taken by the appellant firm before the Tribunal.

Analysis:
The judgment by the Appellate Tribunal CESTAT KOLKATA involved a rectification of mistake application filed by the Commissioner seeking a fresh order due to a new stand taken by the appellant firm before the Tribunal. The Commissioner argued that the appellant firm had presented a new contention not raised earlier before the adjudicating authority or the first appellate authority. It was also contended that the Tribunal had passed the order in the absence of the departmental representative, depriving the Revenue of the opportunity to counter the new contention.

The Tribunal noted that it is the responsibility of the department to ensure representation during hearings as per the Cause List and advance notices. The Tribunal emphasized that the absence of the department's representative does not prevent them from considering new grounds for reaching a proper conclusion. Additionally, the appellants claimed to have paid duty on the full value received from buyers without seeking any deductions, a fact not disputed by the Commissioner in their application for rectification.

The Tribunal further stated that the Commissioner failed to establish any grounds necessitating a rectification of the Tribunal's order. The Commissioner's attempt to seek a review based on the appellant firm's new stand was deemed impermissible through a rectification of mistake application. Consequently, the Tribunal dismissed the miscellaneous application for rectification of mistake filed by the department.

In conclusion, the judgment highlighted the importance of proper representation by the department during hearings and clarified that a rectification of mistake application cannot be used to seek a review based on new contentions raised by a party. The Tribunal's decision to dismiss the application underscored the limitations of rectification proceedings in addressing substantive issues requiring a review of the original order.