2018 (12) TMI 1419 - AT - Central Excise

Rectification of mistake - errors apparent on the face of record - section 35C(2) of Central Excise Act, 1944 - Held that - The present applicant does not differ with, or controvert, any of the facts that were recorded in the order of the Tribunal. The appeals had been filed by Revenue against the order of the first appellate authority. The applicant herein had not filed any cross-objections in response to appeal of Revenue. For that reason, the respondent therein was denied the opportunity of raising issues that had have been within the consideration of the lower authorities. The procedure of disposal of appeals cannot be converted into an appeal with fresh submissions on the part of the respondent therein.

Summary

Issues: Rectification of mistakes in the order dated 25th October 2017; Scope of proceedings under section 35C(2) of Central Excise Act, 1944; Invocation of section 11A of Central Excise Act, 1944; Filing of cross-objections in appeal proceedings.

Rectification of Mistakes in the Order:
The judgment pertains to applications by M/s KSB Pumps Ltd seeking rectification of mistakes in the order dated 25th October 2017. The applicants requested a recall of the order to be heard afresh for deciding on their submissions. However, the Tribunal noted that such requests run contrary to the purpose and spirit of section 35C(2) of the Central Excise Act, 1944, which limits proceedings to errors apparent on record. Therefore, a matter requiring a fresh hearing to decide on submissions does not fall within the scope of rectification.

Invocation of Section 11A of Central Excise Act, 1944:
The judgment addresses the contention that the order ignored the respondent's submission that section 11A of the Central Excise Act, 1944 could not be invoked based on a previous Tribunal decision. The Tribunal clarified that once a decision is distinguished on facts, the applicability of that decision becomes irrelevant. Therefore, the non-consideration of submissions claimed by the applicant did not constitute an error warranting rectification.

Filing of Cross-objections in Appeal Proceedings:
The judgment highlights that the applicant did not dispute the facts recorded in the Tribunal's order, which were based on appeals filed by the Revenue against the first appellate authority's decision. Since the applicant did not file any cross-objections in response to the Revenue's appeal, the respondent was denied the opportunity to raise issues considered by the lower authorities. The Tribunal emphasized that filing cross-objections is a statutory right for every respondent in an appeal, akin to filing an appeal. Failure to do so precludes the conversion of the appeal proceedings into a new appeal with fresh submissions.

In conclusion, the Tribunal found no merit in the applications against the impugned order and rejected them accordingly. The judgment was pronounced in court on 14/12/2018.