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TMI Blog2014 (3) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... ion having been filed beyond the period of limitation is liable to be dismissed - Decided against Revenue. - E/911/2007 - Misc. Order Nos. M/136-137/2011-WZB/C-IV(SMB) - Dated:- 19-7-2011 - Shri S.K. Gaule, J. Shri V.K. Singh, SDR, for the Appellant. Shri M.A. Nayalkalkar, Advocate, for the Respondent. ORDER Heard both sides. 2. The department by this application is seeking condonation of delay in filing application for rectification of mistake in Tribunal s Order No. A/81/WZB/MUM/2008/SMB/CII [2008 (225) E.L.T. 122 (Tri. - Mum.)]. The rectification pertains to the fact that Tribunal while passing the order did not take into consideration, that the assessment order was conditional and the respondent-assessee did not com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing justice between the parties, were required to be complied with. 4. The contention of the ld. counsel is that the Tribunal s order is dated 19-12-2007 and the rectification of mistake has been filed on 23-4-2010 which is very much beyond the period of six months prescribed under Section 35C(ii) of Central Excise Act, 1944 and there is no provision of law for condonation of delay beyond six months prescribed. In support he has placed reliance on Hon ble Supreme Court in the case of CCE v. Hongo India P. Ltd. - 2009 (236) E.L.T. 417 (S.C.) wherein the Hon ble Supreme Court held that Legislature provided sufficient time namely 180 days for filing reference to Hon ble High Court which is more than the time prescribed for the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal either for clarification or for rectification. In this view of the matter, the appeal is allowed to be withdrawn with the aforesaid liberty keeping all contentions on open. A similar case was there before this Tribunal in the case of K.C. Jain (supra) 7. Paras 3, 4, 5 of the Tribunal s decision are reproduced herein : 3. The application for rectification of alleged mistake is in relation to order passed in the year 2005. Application was filed in October, 2008. Obviously, the application has been filed beyond the period of six months from the date of the order. Section 35C(2) of the Central Excise Act, 1944 empowers the Tribunal to rectify any mistake apparent from record, if such mistake is brought to the notice of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35(c)(2) of the Central Excise Act, 1944 even beyond a period of six months. Liberty to take appropriate remedy would not imply that the Hon ble High Court had condoned the delay in filing such application in the absence of any specific direction by the High Court in that regard. Mere grant of liberty to take appropriate remedy does not amount to extend the period of limitation to file the application for rectification of mistake. 8. In view of the above, I find that decision cited by ld. counsel are applicable to all fours of the case. I also agree with the contentions of the ld. counsel that the Hon ble Supreme Court decision in the case of Sunitadevi (supra) cited by the ld. SDR is distinguished by the Tribunal in the case of Tas Engi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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