2019 (3) TMI 947 - AT - Central Excise

Rectification of mistake - seal of the packing machine was broken - Held that - The applicant has been contending since beginning that initially on 03-03-2010 the packing machine was sealed at 4-5 different points and only one seal got loose and still the machine could not have been used without breaking seals of all the points. The Applicant has requested for verifying the fact by getting the machine checked/examined, as the said machine is still lying in a room sealed by the officers. This issue goes to the root of the matter, and requires verification for the ends of justice - There have been miscarriage of justice, as the Adjudicating Authority have used material collected behind the back, without confronting the appellant. The Final Order dated 07.11.2017 is recalled - ROM is allowed - Appeal is allowed by way of remand.

Summary

Issues:
Rectification of mistake in Final Order dismissing appeals against Order-in-Original dated 30.03.2013 passed by the Commissioner of Central Excise, Raipur.

Analysis:
The applicant sought rectification of the Final Order on various grounds. Firstly, they argued that the Tribunal erred in upholding the finding that the packing machine was operational for clandestine production, as only one seal was found loose out of multiple seals. The applicant emphasized the need for verifying the machine's status to ensure justice. Secondly, they contended that the Tribunal failed to verify facts, such as the location of witnesses to Panchnama and the sealing of the machine, which were crucial to the case. The applicant also raised concerns about the reliance on a report without disclosure, leading to a miscarriage of justice. Additionally, a typographical error in the Final Order was highlighted by the applicant.

The Advocate for the applicant presented detailed arguments for rectification, emphasizing the necessity of verifying the packing machine's seals through a Commission. On the other hand, the Revenue justified the impugned Order by pointing out admissions regarding the seal breakage and machine use in various statements. After hearing both sides and examining the record, the Tribunal acknowledged the fundamental importance of verifying the sealing status of the machine for the case. The Tribunal agreed with the applicant's plea for re-examining the machine to ascertain the sealing at different points, a critical aspect in the matter. The Tribunal also noted the denial of cross-examination of Panchnama witnesses, indicating a procedural flaw.

Referring to a judgment of the Honorable High Court of Bombay, the Tribunal recognized its power to recall an order if a mistake is apparent on the face of the record. The Tribunal identified a miscarriage of justice due to the Adjudicating Authority using undisclosed material, leading to the decision to recall the Final Order. Consequently, the Tribunal allowed the appeal by remanding the case to the Adjudicating Authority. Specific directions were given for the verification of the packing machine, serving a copy of the undisclosed report, and providing cross-examination of Panchnama witnesses. The Tribunal pronounced the order in open court, allowing the Rectification of Mistake application and remanding the appeal for further proceedings.