2018 (12) TMI 718 - AT - Central Excise

Rectification of Mistake - Section 35C(2) of the Central Excise Act - Held that - The issue is not more res-integra and stands settled by the Larger Bench of the Tribunal in the case of M/s Berger Paints India Ltd. V/s Collector of Customs 1993 (8) TMI 85 - CEGAT NEW DELHI . It stands held that second application for rectification of alleged mistake in an order rejecting an application for rectification is not maintainable. Review of the order cannot be sought under the garb of ROM. The relief sought by the applicant which is relatable to the long drawn process of arguments by both the sides cannot be said to be mistake apparent from the records. The present ROM application is rejected on the ground of non-maintainability.

Summary

Issues:
1. Rectification of mistake application filed after a significant delay of 17 years.
2. Maintainability of the subsequent rectification of mistake application.
3. Request to recall the earlier order passed on rectification of mistake application.

Analysis:

Issue 1:
The appellant filed a rectification of mistake (ROM) application after 17 years from the date of the original order. The Revenue argued that the application was time-barred under Section 35C(2) of the Central Excise Act, citing a Larger Bench decision. The appellant relied on a Bombay High Court decision and a Supreme Court ruling, emphasizing the date of receipt of the order as the starting point for limitation. However, the Tribunal found that the delay of 17 years, coupled with the appellant's lack of diligence in following up on the previous ROM application, rendered the present application unjustifiable. The Tribunal highlighted that the date of receipt of the order cannot be equated with the date of obtaining a copy from the Registry.

Issue 2:
The Revenue contended that a subsequent ROM application cannot be entertained after the rejection of an earlier ROM application, citing established legal principles. The Tribunal referred to Section 35C(2) of the Central Excise Act, which allows rectification of mistakes within six months from the date of the order. Relying on precedents, including a decision by a Larger Bench, the Tribunal held that a second ROM application seeking to recall an order passed on an earlier ROM is not maintainable. The appellant's request to recall the earlier order was deemed impermissible under the law.

Issue 3:
The Tribunal examined the merits of the appellant's plea to recall the earlier order, emphasizing that ROM applications are meant to rectify apparent mistakes, not review the substantive decisions. The appellant's prayer related to the quantum of redemption fine and penalty imposed, which the Tribunal had already considered and decided upon in the previous order. The Tribunal reiterated that ROM applications cannot be used to challenge the merits of a case or seek a review of decisions made during the appeal process. Consequently, the Tribunal rejected the present ROM application on both procedural and substantive grounds.

In conclusion, the Tribunal dismissed the rectification of mistake application on the grounds of non-maintainability and lack of merit, upholding the principles of timeliness, legal precedence, and the limited scope of ROM applications.