2024 (6) TMI 1102 - AT - Central Excise

Maintainability of application of rectification of mistake - Section 35C of the Central Excise Act - HELD THAT - The decision of the Larger Bench of the Tribunal in Lal Chand Anand 1985 (7) TMI 118 - CEGAT, NEW DELHI-LB would apply to the facts of the present case. Section 35C of the Central Excise Act is identical to section 35C of the Central Excises and Salt Act, 1944. The Larger Bench construed that the order passed under 35C of the said Act is a final order and not an order deciding the reference. In this view of the matter if an application for rectification of mistake of any order passed under sub-section (1) of section 35C of the Central Excise Act can only be filed, the present application filed for rectification of mistake of an interim order of the Larger Bench deciding the reference, would not be maintainable. The same position was reiterated by a Larger Bench of the Tribunal consisting of Three Members in Hico Enterprises 2005 (11) TMI 104 - CESTAT, MUMBAI . This was a case where the rectification of mistake application was filed under sub-section (2) of section 129B of the Customs Act 1962 the Customs Act . Sub-section (2) of section 129B, which deals with rectification of mistake, refers to an order passed under sub-section (1) and sub-section (1) of section 129B is identical to sub-section (1) section 35C of the Central Excise Act. The Larger Bench of the Tribunal held that the order answering the reference is not a final order and so the application filed for rectification of mistake in this order would not be maintainable. The contention advanced by the learned special counsel for the department that the order passed by the Larger Bench of the Tribunal deciding the reference should be treated as a final order for the purposes of section 35C(1) of the Central Excise Act as the Division Bench would ultimately be bound by the order of the Larger Bench cannot also be accepted in view of the decision of the Larger Bench of the Tribunal consisting of Five Members in Lal Chand Anand. The inevitable conclusion that flows from the aforesaid discussion is that the present applications filed by the department for rectification of mistakes in the interim order dated 06.06.2023 passed by the Larger Bench of the Tribunal answering the reference made by a Division Bench of the Tribunal, are not maintainable. The five applications filed for rectification of mistakes are, accordingly, rejected.

Summary

Issues Involved:
1. Maintainability of applications for Rectification of Mistakes in an interim order.
2. Interpretation of statutory terms and expressions.
3. Application of common parlance versus trade parlance.
4. Relevance and consideration of dictionary meanings.
5. Consideration of Circulars and BIS Standards.
6. Scope of expressions in statutory and regulatory context.

Detailed Analysis:

1. Maintainability of Applications for Rectification of Mistakes:
The primary issue was whether the applications for rectification of mistakes in the interim order dated 06.06.2023 were maintainable. The Tribunal examined the provisions of sub-section (1) and sub-section (2) of section 35C of the Central Excise Act. It was concluded that the interim order passed by the Larger Bench answering the reference made by a Division Bench of the Tribunal is not a final order as contemplated under sub-section (1) of section 35C. Therefore, applications filed under sub-section (2) of section 35C for rectification of mistakes in the interim order are not maintainable. This conclusion was supported by the Larger Bench decision in "Collector of Central Excise, Meerut and Others vs. Lal Chand Anand and Other" and "Commissioner of Customs, Mumbai vs. Hico Enterprises."

2. Interpretation of Statutory Terms and Expressions:
The Tribunal addressed the first mistake pointed out by the Revenue, which concerned the limitation of applying dictionary meanings to an expression not defined in a statute. The Tribunal noted that when a word is not defined in the statute, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. The Tribunal cited the Supreme Court decision in "CIT vs. Venkateswara Hatcheries (P) Ltd" to support this view.

3. Application of Common Parlance versus Trade Parlance:
Regarding the second mistake, the Tribunal contended that "automobile" is a term of ordinary usage and not a scientific or technical term. Therefore, ordinary meaning/common meaning would be relevant, and dictionaries can be safely referred to for ascertaining its meaning. The Tribunal clarified that the issue referred to the Larger Bench was not about whether trade parlance/commercial parlance should be resorted to.

4. Relevance and Consideration of Dictionary Meanings:
For the third mistake, the Tribunal noted that relevant extracts of various dictionaries defining "automobile" were enclosed in the Compilation Volume-I submitted in Excise Appeal No. 791-793 of 2012. It was clear from these extracts that "automobile" is a vehicle carrying a small quantity of goods. The Tribunal referred to Black's Law Dictionary for ascertaining the meaning of a word not defined in the statute, as observed by the Supreme Court in "Venkateswara Hatcheries."

5. Consideration of Circulars and BIS Standards:
Regarding the fourth mistake, the Tribunal contended that the three Circulars of the Central Board of Excise and Customs represent the understanding of the Board for finding out the meaning of the term "automobile," which has not been defined in the statute. Thus, these Circulars provide an answer as well as direction to the first question referred to the Larger Bench. For the fifth mistake, the Tribunal noted that BIS Standard relates to "automotive vehicles" and cannot be equated with the term "automobiles."

6. Scope of Expressions in Statutory and Regulatory Context:
Regarding the sixth mistake, the Tribunal contended that the Revenue failed to establish that the parts referred to are common for automotive vehicles in the show cause notice. There was no basis to allege that the aforesaid parts are common to all automotive vehicles. In the absence of such an allegation in the show cause notice, the Revenue cannot raise this issue.

Conclusion:
The applications filed by the department for rectification of mistakes in the interim order dated 06.06.2023 were rejected as they were not maintainable. The Tribunal did not find it necessary to examine whether the Revenue was practically seeking a review of the order or whether the alleged mistakes needed rectification. The five applications for rectification of mistakes were accordingly rejected.