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TMI Blog2016 (11) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... ld tantamount to re-opening the matter and rehearing the matter in full and thus ROM petitions are rejected - Application Nos.C/ROM/40210/2016 in C/41936/2013 and C/ROM/40212/2016 in C/41935/2013 - MISC ORDER No. 40421-40422/2016 - Dated:- 19-7-2016 - Shri P.K. Choudhary, (J) And Shri C.J. Mathew, (T) Dr. G.K. Sarkar, Advocate, For the Applicant Shri K. Veerabadhra Reddy, JC (AR) For the Respondent Per P.K. Choudhary This Rectification of Mistake petition is filed against the Final Order No.41730-41731/2015 dt. 23.12.2015 passed by this Tribunal. The contentions raised in the petition are as follows: a) that the CESTAT order though recorded that adjudicating authority has traversed beyond SCN, the order does not gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been also held that a decision on a debatable point of law cannot be a mistake apparent from the record. If one looks at the subsequent order passed by the CESTAT in pursuance of the rectification application, it is very clear that the CESTAT re-appreciated the evidence and came to a different conclusion than the earlier one. At an earlier point of time, the CESTAT came to a conclusion that the company to which the respondent-assessee sold its goods was an inter-connected company. In the circumstances, according to the CESTAT, the decision of the department to appoint a Cost Accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal view taken earlier in pursuance of a rectification application. In our opinion, the CESTAT could not have done so while exercising its powers under Section 35C(2) of the Act, and, therefore, the impugned order passed in pursuance of the rectification application is bad in law and, therefore, the said order is hereby quashed and set aside. The appeal is allowed with no order as to costs. Also, various Courts have held when an item can constitute as mistake apparent on record: i) A debatable point of law cannot be treated as mistake apparent from record - 2015 (9) TMI 1388 - CESTAT (Chennai). ii) A request for seeking aside penalty woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing decisions: a) Honda Siel Power Products Ltd. Vs Commissioner of Income Tax, Delhi 2008 (221) ELT 11 - SC b) CCE Excise Mumbai - III Vs N.T.B International Pvt Ltd. 2014 (302) ELT 481 (Bom.) 5. As regards the first case, the case law pertains to Income Tax Act and hence the same is not being taken into consideration as there are sufficient jurisprudence in the context of Rectification of Mistake under Indirect tax laws. We also find that the judgement later than the decision of Honda Siel Power Products and accordingly we would go with the decision of the Hon'ble Supreme Court in the case of RDC Concrete (supra). 6. As regards the second case law, though the said decision was given by the Hon'ble Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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