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TMI Blog2005 (6) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... lication No. E/569/99 dated 22-10-1998 filed by the appellant praying for additional grounds, and additional evidence was allowed after hearing the parties, the grounds raised therein were not at all dealt with while disposing of the appeal under the said order by which the Tribunal sustained the denial of Modvat credit to the tune of Rs. 39,319/- in the ferro silicon and Rs. 11,50,021/- involved in the case of 603.613 MT of ferro manganese and the penalty which was reduced from Rs. 2,50,000/- to Rs. 1,50,000/-. It is stated in this ROM that it was filed within the then time limit of four years which was prescribed under Section 35C(2) of the Act. 2. The miscellaneous application No. E/110/2004 has been filed in connection with the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in respect of Shri S.S. Jha at Sl. No. 14 was 2-4-1990. In Column 4 of the notification, the posting given to this officer on promotion is shown against his name as per which he was posted on promotion as Collector of Central Excise, Meerut. On noticing this aspect, the learned Counsel for the applicant has contended that there could not have been any retrospective appointment of the said officer as Collector from 2-4-1990 by the notification dated 2-12-1993. 4. The learned Counsel for the applicant who has been heard at great length, has contended that even though in the final order dated 1-5-2000, the Tribunal referred to the fact that the miscellaneous application No. 569/99 raising the additional ground was allowed, it did not deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such conclusions. (c) The decision of the Allahabad High Court in Hira Lal Sutwala v. Commissioner of Income-tax, UP reported in 1965 (56) ITR 339 was cited for the proposition that rectification of an apparent mistake does not prevent subsequent rectification of another apparent mistake under the same provision. (d) The decision of the Supreme Court in Garikapatti Veeraya v. N. Subbiah Choudhury reported in 1957 (SC2) GJX 10 SC was cited for the proposition that the right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from that date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operative Societies Rules, 1959, could be made by any such Assistant Registrar prior to that date. (g) The decision of two Member-Bench of this Tribunal in Shree Warana Sahakari Dudh Utpadak Prakriya Sangh Ltd. v. CCE, Pune reported in 2003 (155) E.L.T. 465 was cited to point out, in the context of the provisions of Section 35C(2) that, the Tribunal held that the right to file rectification of mistake application within four years inhered in the appellant on the date of filing of the appeal and was not taken away by reduction in the period of limitation for filing such application from four years to six months, which came into force in May 2002. When this decision was cited, it was pointed out to the learned Counsel that it was over-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal grounds raised in the miscellaneous application No. E/M/569/99. When the Tribunal has reproduced the contentions in great detail, there was no reason for it not to deal with such a ground if it was argued, after allowing the application for additional grounds. 6. We pointed out to the learned Counsel that in the earlier application for rectification vide E/ROM/149/2000, which was filed on 23-5-2000, that is, soon after the final order dated 1-5-2000 was made, no such contention was ever raised regarding the validity of the show cause notice on the ground that the officer was not duly appointed and, therefore, was not authorised to issue the show cause notice. If we see the record of that application, it is abundantly clear that an at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though raised was never argued in the original appeal nor raised or argued in the earlier rectification application is now sought to be raised as an afterthought just for the sake of making a second rectification application. If the ground was at all argued and not considered in the final order dated 1-5-2000, we are sure that the tenacity with which the main matter and the first rectification of mistake application No. E/149/2000 were pursued, the learned Counsel would never have missed raising the contention that his argument on the basis of the additional ground was made and not considered. This application is, therefore, frivolous and deserves to be rejected with costs. 7. Before making the order as to the costs, we had called upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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