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TMI Blog2016 (11) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... by adopting the Larger Bench decision in the case of Great Lakes Institute of Management Ltd. (supra), rejected the appeal on merits. 2. Thereafter, the said order of the Tribunal was appealed against by the appellant before the Hon'ble Supreme Court, who vide their order dated 08 07 2016, granted leave to appeal in the matter. It is seen that the Hon'ble Supreme Court was also pleased to grant stay of recovery of penalty, subject to the appellants depositing the service tax along with interest within a period of two months. 3 Prior to the filing of appeal before the Hon'ble Supreme Court, the appellant had also moved an application for rectification of mistake before the Tribunal in terms of Section 35C(2) of the Central Excise Act, 1944 on the ground that the Tribunal disposed of the appeal only on merits and did not consider the plea of limitation raised before it in the appeal memo as also during the course of hearing and in the written synopsis filed at the time of hearing. It was contended that the non-consideration of limitation issue amounted to mistake on the part of the Tribunal, thus requiring rectification. The fact of filing of ROM before the Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench either by the Departmental Representative or by the Chief Commissioner, who had admittedly received the same by that time. Revenue in their application have also submitted that two remedies under law before two different fora commonly known as "forum shopping" is a practice which stands disapproved by the Hon'ble Supreme Court, and it is an abuse of the process of law. They relied upon Hon'ble Supreme Court decision in the case of Ketan V Parikh Vs. Special Director, Directorate of Enforcement [2012 (275) ELT 3 (SC)] as also in the case of Ambica Industries Vs. CCE [2007 (213) ELT 323 (SC)]. It is their contention that after the final order was passed on 29 10.2015 the Tribunal became functus officio and had no jurisdiction at all to entertain the application of ROM and the Tribunal could not have reviewed its earlier order and passed a new order setting aside its earlier order. Accordingly, he prayed for recalling the Final Order dated 20 08.2016, passed on ROM. 7 Contesting the above stand of the Revenue, Shri Lakshmi Kumaran, Id. advocate for the applicant raised a preliminary issue submitting that there is no provision for rectifying any mistake in the order passed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of, the Revenue's contention that the earlier order of the Tribunal stands merged with the Hon'ble Supreme Court order dated 08.07.2016 is not worthy of acceptance. Ld. advocate further contended that the allegation of forum shopping' made against the appellant is not sustainable in as much as filing of an appeal before the Hon'ble Supreme Court as well as filing of ROM application before the Tribunal, in exercising of the statutory rights given to the assessee in terms of two different section of Central Excise Act cannot be held as forum shopping. The ROM application as also the appeal is maintainable simultaneously in as much as both are operating in different two fields. Such a stand if accepted would make Section 35C(2) of the Act, as redundant and otiose. He has drawn our attention to various decisions of the Hon'ble Supreme Court to buttress his above stand. He accordingly prayed for dismissing the Revenue's application. Ld. Advocate further submitted that the fact of nondisclosure of the order of Hon'ble Supreme court will not have any effect on the disposal of ROM, as the fact of pendency of ROM was in the knowledge of Supreme Court. Though h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of an appeal before the Hon'ble Supreme Court in terms of Section 35L of the Act and filing of a separate ROM application before the Tribunal under Section 35C(2) of the Act does not amount to "forum shopping" or amounts to merger", but the fact remains that there was non-disclosure of the proceedings pending before the Hon'ble Supreme Court, at the time of disposal of the ROM application It is well settled principle that one who comes to the court seeking justice must come with clean hands The fraud vitiates everything and the fact of non-disclosure of the order of the Hon'ble Supreme Court has the effect of making the ROM order dated 02.08.2016 void ab initio. Though the Id advocate, at the time of hearing on 03.10.2016 for the purpose of disposal of the Miscellaneous Application filed by Revenue, has agreed that the said order should have been brought to the notice of the Bench and he had, in fact, brought the said order for placing it before the Bench, but the same was not inadvertently placed. It is their contention that Non-disclosure of the said fact was not a mistake on the part of the Id. advocate in as much as the said order was also received by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections raised by the Id advocate as regards filing of second application for rectification of mistake in the order passed on the ROM. We make it clear that Revenue is not finding any mistake in the order dated 02.08.2016 passed by the Tribunal on the applicant's ROM application in as much as it is not their contention that the order is wrong. As such, their Misc. Application cannot be said to be rectification of mistake application. The same is for recalling of the order on the sole ground that the fact of the Hon'ble Supreme Court directions to deposit the amount in question was not brought to the notice of the Bench. The Hon'ble Supreme Court in the case of Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. [1996 (5) SCC 550] observed that since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court; it also amounts to an abuse of the process of the Court and the Court has inherent power to set aside the order obtained by practicing fraud upon the Court and that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. It was further held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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