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TMI Blog2009 (9) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the appeal filed by the assessee. When the said appeal was disposed off by this Bench, both sides were heard at length and the decision was taken by the Bench. The revenue has filed a miscellaneous application for rectification of mistake under the provisions of Section 35C(2) of the Central Excise Act, 1944 on 10-12-2008 for rectifying mistake and prayed that there is factual mis-declaration and mistake apparent on record leading to unintended benefit to the respondent. The revenue's contention in the application for rectification of mistake is that the decision relied upon by the Bench in the case of M/s. Godavari Sugar, Mills Ltd. v. CCE, Belgaum as reported in 2007 (212) E.L.T. 234 (Tri.-Bang.) the final products were under diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity, in respect of an input and the final product being under different chapter heading number. He would draw our attention to the application filed for condonation of delay and submit that, this Tribunal has got inherent power to condone the delay in filing the application for rectification of mistake. For that purpose, he would rely upon the decision of the Hon'ble Supreme Court in the case of Sunita Devi Singhania Hospital Trust v. Union of India as reported in 2009 (233) E.L.T. 295 (S.C.) = 2008-TIOL-235-SC-CUS. 4. Learned Counsel appearing on behalf of the assessee respondent would submit that the provisions of Section 35C(2) of the Central Excise Act, specifically indicates the time period for filing an application for rectifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the decision of the Hon'ble Supreme Court in the case of P.K. Ramachandran v. State of Kerala and Another as reported at (1997) 7 SCC 556, for the proposition that the limitation prescribed in a statute will apply with all its rigour. He would submit that Hon'ble Supreme Court in the case of Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs and Pharmaceuticals Ltd. as reported at MANU/Supreme Court/4993/2006 has held that "in Jammu & Kashmir Public Service Commission v. Dr. Narinder Mohan MANU/Supreme Court/0426/1994, this Court held that the directions issued by the court from time to time for regularization of ad hoc appointments are not a ratio of this decision, rather the aforesaid directions were to be treated under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record in our Final Order No. 964/2007 dated 21-8-2007, they could have got the same rectified, when an assessee filed a refund claim. Revenue did not do so. There is no explanation for the delay in filing the application for rectification of mistake on 10-12-2008, when revenue themselves have sanctioned the refund claims to the assessee on 11-2-2008 in Appeal No. E/161/2007. 7. Be that as it may, this Tribunal is creature of statute, more specifically as provided under Section 129 of the Customs Act, 1962. The powers vested in the Tribunal for the purpose of deciding the appeals filed before us are drawn from the said Section 129 of the Customs Act, 1962. The provisions of Central Excise Act, 1944, more specifically the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds to be filed within time. It is also to be noted that these are no provisions for condoning any delay in filing application for rectification of mistake. 8. The reliance placed by the learned Special Counsel for the revenue, in the case of M/s. Sunita Devi Singhania Hospital Trust (supra) seems to be inappropriate, in as much we find that in the facts of the case of Sunita Devi Singhania Hospital Trust, their lordships have held as under : "Apparently, learned Tribunal only considered the factual matric involved in the case of M/s. Miraj Medical Centre W. Hospital and not the factual aspect of the matter involving factual factual matric. Appellants' case had purported to have been determined on the question of law without taking into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention raised before it by the applicant is prima-facie correct, in order to do justice, which is being above law, nothing fetters the judges hands from considering the matter on merit." (emphasis supplied) 8.1 It can be noted from the above reproduced paragraph of the decision of the Hon'ble Supreme Court, that in that case the Tribunal had not gone to the factual aspect or factual matrix in the case of Sunita Devi Singhania Hospital Trust and decided the issue on the factual matrix in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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