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TMI Blog1991 (4) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to the other party to represent their case and also recall the original order and whether the same will not amount to review of their own order under the provisions of Central Excises and Salt Act, 1944. (b) Whether Hon ble CEGAT can admit a miscellaneous petition of a party aggrieved by order of the CEGAT, (which is not being an order having relating to rate of duty) when there is specific statutory provision for filing Reference Application under Sec. 35G(1) of the Central Excises and Salt Act, 1944." In this case, this Bench had originally passed two orders allowing the appeals filed by the Collector of Central Excise challenging the orders-in-appeal passed by the Collector of Central Excise (Appeals), Calcutta and set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that amounts to review of the order which is not the essence of Section 35C(2). Reliance has been placed on the judgments of the Honourable Madras High Court in the case of C. I. T. v. R. Chelladurai reported in 1979 (1187) ITR 108 Madras and of the Honourable Calcutta High Court in 1980 (122) ITR 519 (Cal.) holding that the power to rectify a mistake which is apparent from the record does not include power to review. 3. When the Reference Applications were posted for hearing, Shri M.N. Biswas, learned Senior Departmental Representative argued the Collector s case. He reiterated the arguments contained in the Reference Applications. 4. Shri N. Mookherjee, learned Counsel for the respondents submitted that from the records of the case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal had been dismissed for default of appearance of the assessee s representative. It refused an application for review of this order. On a petition filed to the High Court it was held that in exceptional circumstances and in rare cases the Tribunal can recall and quash its own order where it is shown that it was obtained by fraud or by palpable mistake or was made in after ignorance of a statutory provision and the like. The Tribunal was not called upon to recall its order on merits but for the reason that there was a procedural irregularity as proper opportunity had not been granted to the assessee to argue its appeal. The power which was sought to be exercised by the Tribunal was incidental or ancillary to the exercise of its appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accepted. It came to the conclusion that there was a mistake in its order and as such it required to be recalled. Aggrieved with this decision, the Commissioner filed a Reference Application which was dismissed holding that no question of law arose from its order because the said questions were only questions of fact. Against that decision the Commissioner filed the petition which was allowed by the High Court directing the Tribunal to state the case and refer the questions of law to them whether the Tribunal was correct in law and on facts in holding that there was a mistake in their earlier order and whether they were correct in law and on facts in recalling their own order. 7. Comparing the facts and circumstances of the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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