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TMI Blog2013 (3) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal find that in the present case the points raised in the ROM application were not urged by the applicant at the time of hearing of the application and in their written submissions submitted on the date of hearing. The issue relating to the Rectification of Mistake under Section 35C(2) of the Central Excise Act, 1944 was examined by the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Belapur, Mumbai v. RDC Concrete (India) Pvt. Ltd. reported in [2011 (8) TMI 25 - SUPREME COURT OF INDIA] and observed 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 view of the observation of the Hon’ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /671/2010 and in Appeal No. E/801/2010 has not been considered and erroneously confirmed the demand as per the Order-in-Original which is incorrectly calculated. (d) Penalty imposed under Section 11AC without considering the ground of revenue neutrality which is at para 6.2 of Appeal No. E/671/2010. Therefore, there is an error apparent from face of record in the above referred order of the Tribunal. 3. The learned Sr. Counsel appearing for the applicant submitted that the Tribunal being a fact-finding authority, it is the duty of the Tribunal to consider all the grounds raised in the memorandum of appeal and give findings on each of them. In support of his contention, he relied upon the following judgments :- (a) Abhay Industries v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in support of his contention that omission of considering the grounds raised in memorandum of appeal would be mistake apparent from record :- (i) Commissioner of Income Tax v. Ramesh Chandra Modi - [2001] 249 ITR 323 (Raj), (ii) Commissioner of Income Tax v. Keshav Fruit Mart - [1993] 199 ITR 771 (All) = 2005 (191) E.L.T. 147 (All.). 4. The learned Addl. Commissioner (Authorized Representative) appearing for the Revenue submitted that the points raised by applicants are not the apparent mistakes on record in the impugned order. He submitted that the Tribunal in the impugned order in para 12 has held that the appellant in their application has undertaken that such goods shall be used for manufacture of fertilizers and has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal. We also note that at the time of hearing, the applicant has submitted the written submissions and in those written submissions the points raised in the ROM application were also not taken by the applicant during the course of hearing. That means that the applicant himself has not raised those grounds at the time of argument and now once the order is passed, they cannot contend that those points were not considered by the Tribunal while passing the order. 6. Learned Sr. Advocate has relied upon the decision of Hon ble Bombay High Court in the case of Abhay Industries (supra). We find that in that case, after hearing of the case the written submissions were submitted in respect of the arguments advanced before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g such error by recalling the order made without deciding such question which goes to the root of the matter for deciding the same appropriately falls in such category of procedural mistakes which such Tribunal must correct ex debito justitiae, even in the absence of any power. The present case falls in that class. We find that as the Hon ble High Court has held that when there is such an issue which goes to the root of the matter remains undecided then such category of procedural mistake can be corrected by the Tribunal. We find that the issues raised in the application were not urged and argued by the applicant at the time of personal hearing and the applicant himself was not considering these issues as important issues. Therefore, rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the ROM application was allowed by ITAT on the ground that the Tribunal has not considered the judgment of the co-ordinate Bench in case of Samtel Color Ltd. while passing the order and when the Revenue went to the Hon ble High Court against the order of the Tribunal, the Hon ble High Court has set aside the order of the Tribunal allowing the ROM application. In appeal before the Hon ble Supreme Court by the assessee, the Hon ble Supreme Court has held that the Tribunal has 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. We find that in the present case, the Tribunal has not escaped any decision cited by the applicant on the same issue. We are, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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