2018 (10) TMI 820 - AT - Central Excise

Rectification of Mistake/Recall of order - Section 35C(2) of CEA - Held that - The applicant also sought for recall of the order passed by the Tribunal under Section 35C(1). Since only rectification would suffice the remedy sought in the Rectification of Mistake application, recalling of order is uncalled for. As found from the ROM, same appears to have been filed on 08.06.2018 which is almost 8 months after passing of the order and 7 months after receipt of the order by the appellant on dated 04.06.2018. No date stamp of receipt of Rectification of Mistake application by the Registry, CESTAT, Mumbai is found nor any date of filing is indicated anywhere in the office note for which no observation could be made as to if the ROM application is filed on time - the wording adjudicating authority found in para 6 of the order passed on 06.10.2017 is deemed to be meant as Commissioner (Appeals) and a formal amendment is permissible under Section 35C(2), under which the ROM application is filed. ROM Application allowed.

Summary

Issues: Typographical error in the order, rectification under Section 35C(2), recall of order, timeliness of Rectification of Mistake application

In this judgment, the issue revolved around a typographical error in the order passed by the predecessor judicial member, which remanded the matter back to the adjudicating authority instead of the Commissioner (Appeals). The applicant, the appellant in the case, contended that the order was not in conformity with relevant legal precedents. The appellate Tribunal, empowered under Section 35C(1), has the authority to refer the case back to the authority that passed the decision for fresh adjudication. However, in this case, the mistake was considered a typographical error, and the Tribunal had the power under Section 35C(2) to rectify it. The applicant also sought a recall of the order, but the Tribunal deemed that only rectification was necessary, not a complete recall.

The Rectification of Mistake application was filed almost 8 months after the order was passed, raising concerns about the timeliness of the application. The Tribunal noted the absence of a date stamp indicating the receipt of the application by the Registry, further complicating the issue of timeliness. Despite the delay in filing, the Tribunal ultimately allowed the Rectification of Mistake application, correcting the wording in the order to reflect that both appeals were remanded to the Commissioner (Appeals), Mumbai II. This correction was deemed a formal amendment permissible under Section 35C(2), which governed the rectification process.