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TMI Blog2013 (4) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ority for fresh adjudication after hearing the petitioner/appellant on the question of eligibility of launching trusses for exemption under Notification No. 3/2005-C.E., dated 24-2-2005. 2. Shri P.K. Sahu, Advocate appearing for the appellant has contended that the order of the Tribunal requires rectification as it suffers from error apparent on the face of record. Expanding on the argument ld. Counsel pleaded that the department has raised the demand under show cause notice dated 28-4-2008 on the premise that launching trusses fabricated by the appellant are subject to excise duty under chapter Heading 8425 of the First Schedule to the Central Excise Tariff Act. The Tribunal vide the order-in-question has dispelled aforesaid view of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal : Provided 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 Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard". 4. The issue regarding the scope of Tribunal's power to recall its order under Section 35C(2) of the Central Excise Act, 1944 came up before the Supreme Court in the matter of CCE, Calcutta v. A.S.C.U. Ltd. reported in 2003 (151) E.L.T. 481 (SC) wherein the Supreme Court held thus :- "13. As stated above, the scope of correction which can be made by the Tribunal under Section 35C(2) is limited. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record". 6. In the light of aforesaid enunciation of law we now proceed to analyse whether or not there is any error apparent on the face of record which may justify rectification of the final order dated 2-7-2012. 7. As regards the first plea taken by the appellant we may note that object of serving show cause notice on the assessee b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid judgment is of no avail to the appellant/petitioner. Aforesaid matter was a case involving pure classification issue wherein the appellant/petitioner was claiming his product to be classifiable under Heading 3003.30 and the department vide show cause notice was proposing to classify under tariff Heading 3003.19 and the Tribunal rejecting both the classification proceeded to classify the subject goods of that case under sub-heading 17.04 which clearly indicate that the appellant/petitioner was taken by surprise and new case was set up at the second appellate stage before the Tribunal. In the instant case the classification proposed by the appellant/petitioner has been accepted, therefore, it cannot be said that he has been taken by s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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