9911796707
TMI Blog1994 (8) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the applicants, in support of the application, submitted that third Member to whom the matter had been referred on difference of opinion, erred in admitting fresh evidence i.e., invoice issued by M/s. SERS of France in respect of sale of power feeding electrodes and relative bill of entry filed in Bombay Custom House, and thus, mistake has crept in the order while arriving at the conclusion based upon the said bill of entry. He said that issue relates to marketability of the product, namely, Graphite Head Blocks. Judicial Member in his order categorically recorded the finding in para 8 at page 6 of the order that Department has not brought on record any evidence to show that these goods were either sold or marketable as such. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Member had not been given any right to decide the appeal. Consequently the case, had never been properly disposed of by the Tribunal and there was no order of the Tribunal from which the reference under Section 66 could arise, in support of his contention 3. It was argued by the learned Departmental Representative that only mistake apparent from the record can be rectified under Section 35C(2) of the Act. This is neither a mistake nor mistake apparent from the record. He submitted that there was no error committed by the third Member in admitting the evidence since evidence does not require any further investigation and furthermore, that bill of entry was relevant to decide the issue referred to him. He submitted that conclusion or opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. On the other hand, it was contended by the Departmental Representative that it was within his jurisdiction to admit evidence since it relates to very issue to be decided by him on difference of opinion. Neither side has produced any authority to show whether third Member was within his power to entertain fresh evidence or not in support of their respective contentions. Accordingly, we are of the view that issue itself is not free from doubt in the absence of any authority on this issue. It is clear from the wordings of Section 35C(2) of the Central Excises and Salt Act, 1944 that all mistakes cannot be rectified and only mistake which is apparent from the record is required to be rectified. In the case of T.S. Balaram, Income Tax Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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