2021 (1) TMI 337 - AT - Central Excise

Rectification of Mistake - mistake apparent on the face of record - review of order - Section 35C (2) of the Central Excise Act, 1944. As per Ashok Jindal, HELD THAT - There are no merit in the applications for rectification of mistake filed by the Revenue. If any consideration is given to the same, the same shall be amount to review of our own order which is not permissible in law - the applications for rectification of mistake filed by the Revenue is dismissed. As per Sanjiv Srivastava The present applications are undoubtedly and undisputedly the applications filed under Section 35C (2) of the Central Excise Act, 1944 for rectification of the mistake apparent from the record. It is settled law as to what can be the scope of the application made under this section and what is the mistake apparent from the records which can be rectified under this section. In the application under consideration, applicant revenue is seeking to persuade the tribunal to reconsider the evidence and the facts that were there at the time of deciding the appeal. Such reconsideration and reappreciation of the evidence is not what is envisaged under section 35 C (2) - the distinction between the appeal and application for rectification of mistake is quite obvious and even a wrong finding of fact or in law needs to be challenged in an appeal before the appellate authority and cannot be rectified by recall of order in terms of Section 35 C (2). There are no merits in the applications filed by the revenue - application dismissed.

Summary

Issues:
Rectification of mistake in the Final Order passed by the Tribunal.

Analysis:
The Revenue filed applications for rectification of mistake in the Final Order dated 15.04.2019, claiming that the Tribunal did not consider their arguments. The Revenue argued that all points were raised during the proceedings, and the Tribunal's failure to consider them necessitated a recall of the order. However, the appellant's counsel contended that rectification of mistake applications were not maintainable as the arguments were duly considered before passing the order. The appellant cited legal precedents, including a decision by the Hon'ble Apex Court, to support their argument against recalling the order. After hearing both parties, the Tribunal found that the arguments raised by the Revenue were indeed considered, and there was no merit in the rectification applications. The Tribunal emphasized that recalling the order would amount to reviewing its own decision, which is impermissible in law. Therefore, the Tribunal dismissed the applications for rectification of mistake filed by the Revenue.

In a separate opinion, the Member (Technical) concurred with the decision of the Member (Judicial) and elaborated on the scope of rectification of mistake under Section 35C(2) of the Central Excise Act, 1944. Referring to a legal precedent, the Member highlighted that rectification of mistake should address obvious and patent errors, not involve reconsideration of evidence or legal views. The Member emphasized that the distinction between an appeal and a rectification application is crucial, stating that challenging a wrong finding of fact or law should be done through an appeal, not a rectification application. Consequently, the Member found no merit in the Revenue's applications and fully supported the decision to dismiss them.

Therefore, the Tribunal, comprising Hon'ble Mr. Ashok Jindal and Hon'ble Mr. Sanjiv Srivastava, rejected the Revenue's applications for rectification of mistake in the Final Order, as the arguments were already considered, and recalling the order would amount to reviewing their own decision, which is not permissible under the law. The comprehensive analysis provided by both Members underscores the importance of distinguishing between rectification applications and appeals, emphasizing that rectification should address clear errors rather than involve reassessment of evidence or legal interpretations.