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TMI Blog2009 (5) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, there is mistake apparent from the record which would justify exercise of powers under Section 35C(2) of the Central Excise Act, 1944. 4. While placing reliance in the decisions in the matter of Commissioner of Income Tax v. Keshav Fruit Mart, 2005 (191) E.L.T. 147 (All); Chiripal Twisting & Sizing Pvt. Ltd. v. Union of India, 2006 (198) E.L.T. 340 (Guj.) = 2007 (8) S.T.R. 445 (Guj.); J.M. Industries v. Commissioner of Customs, Jamnagar, 2005 (187) E.L.T. 291 (Guj); Majestic Match Works v. CEGAT, Madras, 1994 (70) E.L.T. 529 (Mad); Thomas Mathew v. Commissioner of Customs (Seaport-Import), Chennai, 2007 (217) E.L.T. 405 (T); and Conwood Pre-Fab Pvt. Ltd. v. Union of India, 2008 (86) RLT 6 (Bom.) = 2008 (224) E.L.T. 37 (Bom.), learned advocate for the applicant submitted that, the order dated 23rd May, 2008, in the said appeals, apparently discloses that the points, which were sought to be argued on behalf of the appellants and which were enumerated in the memorandum of appeals, were not at all considered and no findings were given on those points. He has further submitted that, it is the bounded duty of this Tribunal as the last fact finding authority to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f being heard. We are not considered with the proviso in the matter in hand. 8. Apart from Section 35C(2), we have not been pointed out any provision of law which would empower the Tribunal to pass an order rectifying or modifying its earlier order passed under the said Act. It cannot be forgotten that the Tribunal is the creation under the said statute and, therefore, is governed by the statutory provisions comprised under the said Act and the Rules framed thereunder. Undoubtedly, as it has been held by the Apex Court, the Tribunal will have power to pass incidental orders to make decisions of the Tribunal enforceable and effective. However, such a power would not include passing of orders in the form of either review or in the nature of revision of its earlier orders. 9. We are aware that under Section 35D of the said Act, provisions of Section 129C(6) are made applicable to the Tribunal in discharge of its functions. Section 129C(6) of the Customs Act provides that, "the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its power or of the discharge of its functions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the High Court of Allahabad in appeal under Section 35G of the said Act, on which heavy reliance is placed to justify the grant of relief asked for in this application, reads thus : "The grievance raised in the present appeal filed against the order dated 23-5-2008 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, is that the Tribunal had not dealt with the various contentions raised in the memo of appeal and argued at the time of hearing of the appeal. The appropriate remedy is to file an application before the Tribunal seeking rectification. The appeal is dismissed on this ground. Shri Shambu Chopra, learned counsel for the respondent is present." 13. A plain reading of the above order passed by the High Court of Allahabad, therefore, discloses that, the Hon'ble High Court had recorded the grievances of the applicant that it related to the failure on the part of the Tribunal to deal with various contentions raised in the memo of appeal and argued at the time of hearing of the appeals. Upon noting the grievance, the Hon'ble High Court has observed that, the proper remedy for the applicant would be to file an application before the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t fact finding authority. 15. At this stage, the learned advocate for the applicant, drew our attention to the decision of the Apex Court in the case of Sunitadevi Singhania Hospital Trust v. Union of India, 2009 (233) E.L.T. 295 (S.C.), contending that the dispute of limitation does not arise in case of rectification of mistake. 16. The Apex Court in the case of Sunitadevi Singhania Hospital Trust (supra) after taking note of the facts of the case, held thus : "It is true that the period of limitation specified in terms of sub-section (2) of Section 129B of the Customs Act is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefor. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with. While the judges' records are considered to be final, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclose allegation that the goods loaded on the vehicle were not recorded in the prescribed records, that the alleged excess stock of the finished goods, raw materials and packing materials were seized without authority of law, that no inference could be drawn from the fact that the goods were found stored in the unapproved premises as the same was due to shortage of space and authority had accepted the explanation given by the appellants in that record, that the entire case was fabricated against the appellants, that the Panchnama was fabricated, that the demand of duty on allegation of clandestine removal was based on the entries in the loose papers and diary allegedly recovered from the possession of the two employees, and which could not have been relied upon in the absence of proper investigation, and that the learned advocate had stressed on all the contentions raised in the memo of appeals, and that the same were not correctly recorded and no findings were given on all those contentions. 20. Perusal of the order dated 23rd May, 2008 discloses that, it contains recording of the facts, contentions advanced on behalf of rival parties, and the conclusion by the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as the excess goods were found in the truck which were packed in systematic way to conceal the actual weight and recovery of excess raw material valued at Rs. 8,39,196/- and packing material valued at Rs. 15,10,222/-. In addition to this, the excess finished goods valued at Rs. 1,35,384/- were also found in the factory. In these circumstances, we find no merit in the contention of the appellant that excess raw material and packing material was received on that day regarding which no evidence was on record. In view of the documentary evidence showing the production and clearance of the goods not reflected in the statutory record, we find no merit in these appeals. The appeals are dismissed." 23. A plain reading of paras 3 and 5 of the said order dated 23rd May, 2008 would, therefore, apparently disclose consideration of all the points which were sought to be canvassed and recorded in para 3 of the order. It is not the case of the application that para 5 does not cover the contentions which are recorded in para 3 of the said order. Only grievance is that, though various other points were argued, as stated in the application, those points do not find consideration in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Courts. Law in that regard is well settled by the decision of the Apex Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak, reported in AIR 1982 SUPREME COURT 1249. The Apex Court therein had clearly ruled that the matters of judicial record are unquestionable and they are not open to doubt. After referring to the privy council decision in the matter of Somasundaran v. Subramanian, reported in AIR 1926 PC 136, it was observed that "we are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidences. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the application under consideration, there is no material before us to disclose that on 17th April, 2008, begin this Tribunal, the advocate for the appellants had, in fact, canvassed in the said appeals all the points which are enumerated in paras 4 to 9 in the application. It is, however, the contention on behalf of the appellants that those are the very points which were listed as the grounds in the memo of appeal. 30. It needs no elaborate discussion to take note of the fact regarding the practice which is followed in all the Courts and Tribunal regarding the arguments which are advanced on behalf of the parties. Rarely an advocate or the representative of the party argues the matter on each and every point enumerated or listed as the ground in the memo of appeal. It is well settled practice in all the Courts or Tribunals to argue the matter to the extent the grounds are convincing for the challenge to the order passed by the lower authority. In fact, normally every memo of appeal includes ground like "the impugned order is contrary to the provisions of law", "the impugned order is contrary to the materials on record", "the lower authority failed to take note of various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record the materials which could reveal that the contentions sought to be raised by him are, prima facie, correct. As already pointed out above, apart from mere allegation that, the advocate for the applicant had argued the grounds enumerated in paras 4 to 9 of the application, no material is placed before us even to hold, prima facie, that indeed the applicant's advocate had argued those grounds before this Tribunal on 17th April, 2008. 33. That being so, the decision of the Apex Court in Sunitadevi Singhania Hospital Trust's case (supra), rather than assisting the applicant, justifies the view that we are taking in the matter. The decision of the Division Bench of the Bombay High Court in Conwood Pre-Fab Pvt. Ltd's case (supra) is on the ground that, where material on record is not considered by the Tribunal while passing the order, then it would fall within the expression 'rectification' and not 'review'. The decision is not on the point that failure to consider the contentions sought to be canvassed would be a case of rectification. Nevertheless, in the case in hand, the applicant has not been able to make out a case of non-consideration of the contentions alleged to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court from holding that the order of the Tribunal was defective to the limited extent that the Tribunal had not considered the question of limitation pointed out to it. We fail to understand, how this decision could be of any help to the applicant in the matter in hand. 38. In the case of Thomas Mathew (supra), the Tribunal had allowed the application for rectification while observing as under : "On a careful consideration of the matter, we find that the appellant was not represented. Although the points raised by the appellant has been dealt with while passing the order, the learned counsel submits that several legal plea has not been answered in terms of the Final Order pertains to 2243/2005 which is recalled and the appeal no. C/13/2005 is restored in its original number." Obviously, the matter was considered from the point of view that the party was not represented by his counsel or legally trained mind, besides that, certain legal points, which were required to be considered in the facts of that case, were not considered. In that view of the matter, the application was allowed. It is also to be noted that, the order does not disclose that the contention on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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