9911796707
TMI Blog1985 (5) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice No. 261/77 dated 29-12-1977 duty should have been ordered to be paid @ Re. 1/- per kg. only and not at Rs. 16/- per kg. It is further stated that the quantity manufactured and cleared was 6,179.700 kgs. only during the relevant period and not 9,838.460 kgs. and, therefore, the amount of duty payable should have been calculated on this figure of 6,179.700 kgs. only. By way of additional grounds it has been further submitted that the issue to be decided in the appeal was covered by a decision of the Bombay High Court in the case of Pira Mal Spinning Weaving Mills Ltd. v. Union of India (1982 E.L.T. 145). 3. We heard Shri S. Kachwaha, Advocate, for the applicants and Shri K.D. Tayal, Senior Departmental Representative, for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise, [1985 (19) E.L.T. 198]. These judgments had considered the various judgments of the High Courts and Supreme Court arising under Section 35 of the Income-tax Act, 1922, the provisions of which were exactly similar to the provisions in Section 35C(2) of the Central Excises and Salt Act. In these judgments the Courts had drawn a clear distinction between powers of review or revision and powers of rectification as contained in the provisions cited supra. 6. Under Section 35C(2) the errors to be rectified should have arisen from any mistake apparent from the record. In construing the above words it had been held in the above cited two decisions of this Tribunal, following the decisions of the High Courts and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants themselves were not aware of the trade notice or the judgment of the Bombay High Court when the appeal was heard. Therefore, this error, if an error at all, could not be said to be one apparent from the record, since we will have to travel outside the record and search amongst records of other parties to discover these new facts, on the basis of which relief is now claimed. Not merely that, the applicability of the Trade Notice would itself be debatable since the Trade Notice refers to fancy yarn made of cotton yarn to which continuous filament viscose yarn is over-lapped to produce a continuous filament viscose. On the other hand, the filament yarn manufactured by the applicants was nylon filament yarn. Further, even as far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 22-8-1984, M/s Shree Textile Mills refers to order No. 387/84, dated 6-7-1984 and prays for amendment of that order. Therefore, notwithstanding what the Advocate said on 2-5-1985, this application is very much an application for amendment of the order passed on 6-7-1984. 12. The reasons for saying that this Bench could hear this application was given as being that what would be said would be what was omitted at the hearing that led to the order of 6-7-1984. Then what is the status of this application? If one agrees with it, will the bench pass an independent order? If so, is it an appeal and what was the order appealed against? If this application arises from circumstances that led to the order of 6-7-84, how can it be not an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the fault of the party. It is submitted that no such condition is contained in section 35C(2), Central Excises and Salt Act, 1944. Thus a mistake in the Tribunal s orders has to be rectified may it be on account of party to the appeal or on account of the Appellate Tribunal itself. The only condition in this respect is that the mistake which is to be rectified should be apparent on the face of record. But that does not mean that any omission or fault of any of the parties to raise a point can be termed as a mistake which can be subsequently cured by way of rectification. The provision for rectification cannot be used by parties just for enforcing a re-hearing of appeal to cover up their lapses. But where the Tribunal has committed a mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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