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TMI Blog1989 (3) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... urt allowing the appeal. However, at the time of dictating the judgment, it appeared that prima facie the issue in the present appeal was different from the issue which was decided in the order of this Tribunal relied upon by Shri Santhanam and cited before the Bench as covering the present case. Briefly, in the case relating to present appeal, the Department s allegation is that the appellants were recovering caprolactum from nylon waste by the process of de-polymerisation and not by the process of recycling, which would entitle them to the benefit of Notification No. 18/84-CE dated 1-3-1984 and the Notification No. 36/85-CE dated 17-3-1985, as amended. According to these notification, caprolactum produced out of nylon polymer waste by the process of recycling was chargeable to nil rate of duty. The appellants contention in this matter was that the process of de-polymerisation and the process of re-cycling were one and the same. But this view was not accepted by the Department. Another allegation of the Department is that there was suppression of facts as the appellants did not declare in the classification list that they would recover caprolactum out of nylon waste by the proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this appeal before this Tribunal on 30-8-1988 and 1-9-1988. 4. Shri Santhanam then argued that under Section 35C(2) of the Central Excises Salt Act, 1944, this Tribunal could rectify a mistake which was apparent from the record and such mistake should be so patent or obvious that it did not require long drawn process of investigation or arguments. According to him, there was no such error apparent on record in the decision pronounced by the Tribunal on 1-9-1988 as, according to him, the processes of de-polymerisation and re-cycling were one and the same thing and there was no difference between the two. In support of this argument, he drew our attention to the Circular No. 12/88-CX.3 issued by the Central Board of Excise and Customs, New Delhi from File No. 107/1/88-CX. 3, which was published at page I-105 of the CBEC Digest for December, 1988, Vol. II (published by the Directorate of Publications, Customs and Central Excises, New Delhi). He argued that the operative part of the judgment of the Tribunal having been pronounced orally, the Tribunal could not re-hear the matter in view of the Supreme Court judgment reported in AIR -1988 - SC - 371 in the case of Vinod Kumar Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the Tribunal s Order No. 160-161/88-D. The issue decided by the Tribunal vide Order No. 160-161/88-D dated 17-2-1988 is, therefore, completely different from the issue for consideration involved in the present case before us. It was, therefore, a mistake on the part of Shri Santhanam and Shri Chakraborty to state before this Bench on 30-8-1988 and 1-9-1988 respectively that the present case was fully covered by the earlier decision dated 17-2-1988 (supra) and it was also an inadvertent error on the part of this Tribunal to accept the statement of both the parties and take a view on that basis. Thus, an error apparent from the record crept in while orally pronouncing operative part of the decision on 1-9-1988. 7. Section 35C(2) of the Central Excises and Salt Act, 1944 provides as follows: (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Central Excise or the other party to the appeal: Sub-section (1) of Section 35C of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ix) AIR-1973-Gauhati- 8 in the case of Ganpatrai Dhanuka v. A.K. Bandyopadhyay. In the case of Mangat Ram Kuthiala v. Commissioner of Income-tax (supra) it was observed by their Lordships that a judicial Tribunal can recall and quash its own order in exceptional and rare cases when it is shown that it was obtained by Fraud or any palpable mistake or was made in utter ignorance of a statutory provision and the like. It was also observed therein that the Tribunal has inherent power to recall such an order, quash it, and make an order on merits and according to law in the ends of justice. The provision in Section 35C(2) of the Central Excises Salt Act, 1944 is similar to the provisions of Section 254(2) of the Income-tax Act, 1961. The ratio of these judgments under the Income-tax Act are applicable to the present case. The mistake in the present case is apparent on the face of the record and it goes to the root of the order. The error having come to the notice of the Tribunal, it must rectify the same by re-calling the order and re-hear the matter on merits. An omission to rectify this mistake will cause serious prejudice to the interest of justice. 8. Shri Santhanam has reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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