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TMI Blog2008 (7) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... was not considered. (4) Recording of the fact that the Appellant had failed to prove from its own daily stock account clearly demarcating entries showing branded and unbranded vanaspati was not correct. (5) That investigation found 10.5 MT was lying in godown and 7.6 MT was cleared without accounting which aggregated to 1.180 MT but not 181.180 MT as appeared in para 3.3 of the order. 2. Shri Kaushik Gupta, Liaison Officer, appearing on behalf of the Appellant reiterated the grounds in the application for rectification of mistake and submitted that the same may be considered as per law. 3.1 Shri Y.S. Loni, learned Departmental Representative (DR) appearing on behalf of Revenue submitted that extensive hearing was granted to the Appellant when the Appeal was disposed on earlier occasion. The order passed by the Tribunal is self-speaking, elaborately reasoning facts of the case. Considering full length of arguments of both sides, appropriate order was passed and the Appellant was granted relief on the basis of evidence shown in the course of hearing by both sides. The facts which gave rise to the litigation was depicted properly in the body of the order. However a ty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2003 when the levy was introduced on branded vanaspati. (E) Also the appellant failed to prove from its own daily stock account by clearly demarcating entries showing branded and unbranded vanaspati produced and cleared during the impugned period and so also stock of branded and unbranded jars with respective evidence not accounted separately for each. (F) 12.510 MT of vanaspati was in record as opening balance on 19-7-2003. However, 7.680 MT of vanaspati in 512 jars were cleared without being accounted for on the date of investigation. 10.500 MT of vanaspati having been found lying in the factory was also not accounted for. Considering that the Appellant made entry of unaccounted stock to suffer duty, the Adjudicating Authority was directed to impose duty on such unaccounted stock. Accordingly it was directed in Para 6.2 of the Tribunal s order that confiscation made for the entire quantity was unwarranted and no fine was also imposable. 4.4 In view of the finding in Para 6.2 of the order it is clarified that grievance of the Appellant that the figure 180.180 appearing in para 3.3 of the order was not at all a subject matter of consideration in the operative part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the order is intended. Mistake means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. Apparent means visible; capable of being seen, obvious; plain. It means open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming. A mistake which can be rectified is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. Rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. In order to bring an application for rectification of mistake the mistake must be apparent from the record. Law does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from self-evident, it ceases to be an apparent error. It is, no doubt, true that a mistake capable of being rectified is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jlee Ltd. - 2006 (198) E.L.T. 489 (S.C.) that if Tribunal fails to take into consideration the material evidence which was present on the record, failure to take into consideration the material evidence, which is present on the record, would certainly amount to mistake apparent on the face of the record and the Tribunal under the circumstances would have the jurisdiction to correct the said mistake in exercise of its powers under Section 35C(2) of the Act. 5.6 Granting of power of rectification to Tribunal can be gathered from the Apex Court Judgment in the case of M/s. Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi - 2008 (221) E.L.T. 11 (S.C.). It was held that one of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. When prejudice results from an order attributable to the Tribunal s mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the court or Tribunal for the wrong committed by it has nothing to do with the concept of inher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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