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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 ..... andeparkar, M. Veeraiyan, JJ. Shri A.P. Mathur, Advocate, for the Appellant. Shri Surendra Shah, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the learned advocate for the appellants and the learned DR for the respondent. 2. We have perused the application as well as the records including the order dated 23rd May, 2008 passed in Appeal Nos. 3141 to 3143 of 1998 [2008 (227) E.L.T. 375 (Tri.-Del.)] as well as memorandum of appeal in the respective appeals. 3. This is an application seeking relief in the nature of recall of order dated 23rd May, 2008 passed in the said appeals on the ground that, certain contentions, which were argued by the learned advocate for the applicant in relation to the matter in issue, were not considered and no findings thereon were given by the Tribunal while passing the said order and, 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 Sizi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no case for holding that there was any mistake apparent from the record which would warrant exercise of powers of rectification of any mistake as such. 7. Section 35C(2) of the said Act provides that, the Tribunal may, at any time within six months from the date of the order, with a view to rectify 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 proviso thereto provides that, an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Tribunal gives notice to such party of its intention to do so and allow them a reasonable opportunity of 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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal within the time specified, the Tribunal is empowered to rectify such mistake. In other words, though the power of review has not been bestowed upon the Tribunal, the Tribunal has been specifically empowered under Section 35C(2) to rectify its mistakes which are apparent from the record provided they are brought to the notice of the Tribunal within the specified period. Perhaps, in a given case, there could be a ground for exercise of such power even beyond the specified period if a case in that regard is made out, but that is not relevant for the matter in hand. As the applicant is essentially seeking the of recall of the earlier order on the basis of the order of the High Court of Allahabad passed on 5-1-2009, perhaps with an intention to avoid the hurdle prescribed under Section 35-C(2) regarding the period of limitation. 12. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 13th February, 2009. The order of the High Court nowhere discloses condonation of delay for filing such application. In the circumstances, the question of entertaining the application under Section 35C(2) cannot arise. The applicant has also not filed any application for Condonation of Delay. Knowing well this difficulty faced by the applicants in the matter in hand, it was, therefore, argued that, in view of the observations of the Hon ble High Court in the order dated 5th January, 2009, the question of limitation would not arise nor it would be a case under Section 35C, but it would be entirely in the interest of justice to the party whose matter, according to the learned Advocate for the applicant was disposed of without considering the points which were canvassed before this Tribunal irrespective of the fact that this is the last 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect and all the conditions laid down by the Notification under consideration in the said case were really complied with by the assessee, then in that case, he could not have been held liable to pay any redemption fine or penalty; the contention, however, that this aspect was not at all considered by the Tribunal. Hence, the assessee had filed an application for rectification of the mistake, which was dismissed by the Tribunal, holding that the same was barred by limitation and that the Tribunal has no power to condone the delay. It was in the background of those facts, the Apex Court had ruled out, as above. 19. As far as the case in hand is concerned, it is the contention on behalf of the applicant that, though the counsel for the applicants had argued various points including that the show cause notice did not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, therefore, there was no intention on part of the appellant to clear the goods without payment of duty. 22. After recording the said submissions and the submissions on behalf of the Revenue, the Tribunal held thus : 5. We find that in this case admitted position is that the appellants are storing raw material as well as excess goods and finished goods in the premises which are not disclosed to the Revenue. In respect of the loose sheets showing the production and clearance of the goods which were not reflected in the statutory record, we find that the documents were recovered from Shri Devesh Rajan and Shri Karan Singh and who explained the entries. Shri Devesh Rajan accepted the entries and admitted manipulation on the advise of Shri S.K. Gupta, Managing Director. In these circumstances 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeals. In the circumstances, one fails to understand how Shri Ravindra Kumar can on oath make a statement that his advocate canvassed certain arguments on behalf of the appellants, and further verify the same to be true to his personal knowledge. 26. There is no affidavit filed by the advocate for the applicants in support of the contention that he had argued the points which are alleged to have been argued and enumerated in paras 4 to 9 of the application. In fact, it is settled law that, whenever party wants to dispute the recording by the Court or Tribunal in relation to the happenings in the Court or Tribunal, it is necessary for such party to file the affidavit in the very Court or Tribunal immediately after having noticed incorrect recording regarding the happenings 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the absence of steps for rectification having been taken a challenge to the correctness of the facts recorded in order sheet of the Court cannot be entertained, must less upheld. Undoubtedly, the proceedings for rectification have to be initiated within the time prescribed for the same and not at the whims and fancies of the parties. 28. Undisputedly, the applicant has not filed any such affidavit in this Tribunal in the case in hand immediately after 23rd May, 2008 i.e. immediately after pronouncement of order, stating that the grounds, which were canvassed by the advocate for the applicant, were not taken note of in the order or they were not considered or that no finding thereon was given. 29. As the matter stands, therefore, apart from the mere allegation in 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fact, all those grounds were actually argued before the Tribunal on 17th April, 2008. 32. The Apex Court in Sunitadevi Singhania Hospital Trust (supra), had clearly held, as already quoted above, that, If such an application is filed within a reasonable time and if the Court or Tribunal finds that the 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 merits. Obviously, the Tribunal has to be satisfied that, the contentions, sought to be raised, are, prima facie, correct. In order to arrive at the finding that, the contentions sought to be raised are, prima facie, correct, it is the bounded duty of the applicant to place on 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of no help to the applicant. 36. As regards the decision of the Gujarat High Court in J.M. Industries s case (supra), it is similar to the matter before the Allahabad High Court in Keshav Fruit Mart s case (supra), and for the same reason, is of no help to the applicant. 37. In Majestic Match Works case (supra), the Hon ble Single Judge of the Madras High Court was dealing with the Writ Petition filed by the aggrieved party against the order of the Tribunal wherein it was brought to the notice of the Court that the petitioner had also sought for a reference to the High Court on certain points of law and that application was pending before the Division Bench. In that regard, it was observed that, that would not prevent the Single Judge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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