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TMI Blog2011 (8) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, in this appeal, is that under the garb of rectification, the CESTAT has modified its order dated 4th November, 2008 in such a way as if the respondent asessee had filed an appeal against the said order and the CESTAT has virtually allowed the appeal against its own order. 3. Mr. B. Bhattacharya, learned Additional Solicitor General, appearing for the Revenue submitted that the CESTAT has limited power to rectify its mistake under the provision of Section 35C(2) of the Act. The relevant portion of the said section reads as under: "35C(2) - The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal........." The learned counsel submitted that as per the language of the aforestated sub-section, it is clear that the Appellate Tribunal, i.e. the CESTAT has power to rectify any mistake which is apparent from the record of any order passed by it under Section 35C(1) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded statements of its officers. In pursuance of investigation, it was found that the pavers manufactured by the respondent were valued by the respondent at Rs.250/- per sq. mtr. and accordingly excise duty was paid thereon. The said pavers were sold by the respondent to a related person or its inter-connected company - M/s. Unitech Ltd. (UTL) for Rs.531/- per sq. mtr. and thereafter UTL was selling the same for Rs.826.50 per sq. mtr. to Senorita Builders Pvt. Ltd. Thus, according to the learned counsel, the goods manufactured by the respondent were shown at a substantially low value only for the purpose of evasion of excise duty. 8. In the aforestated circumstances, a Cost Accountant was appointed to ascertain value of the goods manufactured by the respondent. The Assistant Director (Cost) of the Excise Department, who was a Cost Accountant, was appointed, though he was in service of the Department. An objection was raised by the respondent before the CESTAT at the time of hearing of the appeal referred to hereinabove that an employee of the Department, who was not in practice as a Cost Accountant, could not have been appointed to ascertain value of the goods manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, in pursuance of the rectification application, the CESTAT took altogether a different view whereby it came to the conclusion that the company with which the respondent-assessee had dealings, was in no way inter-connected. Thus, the facts which had been ascertained at an earlier point of time were found to be incorrect or the CESTAT had reappreciated evidence while deciding the rectifying application. 12. According to the learned counsel, the CESTAT should not have re-appreciated the evidence so as to come to a different conclusion while exercising its power under Section 35C(2) of the Act. 13. The learned counsel relied upon judgments of this Court in Commissioner of Central Excise, Calcutta v. Ascu Ltd., Calcutta 2003(9) SCC 230, Commissioner of Central Excise, Vadodara v. Steelco Gujarat Ltd. 2003(12) SCC 731, Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, U.P. 2008(221) E.L.T 16 and Mepco Industries Limited, Madurai v. Commissioner of Income Tax and Another 2010(1) SCC 434. 14. On the other hand, the learned counsel for the respondent-assessee submitted that it was open to the CESTAT to change its view because it apparently noted its mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. 17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different. 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 22. For the aforestated reasons, we are of the view that the CESTAT exceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal view taken earlier in pursuance of a rectification application. In our opinion, the CESTAT could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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