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TMI Blog2015 (10) TMI 2686X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate appearing for the appellant reiterated the grounds mentioned in the application. He mainly contended that appellant brought out all their submissions and also relied several case laws. However, while passing the final order, the Tribunal has not discussed their points and also not countered their case laws. He further submits that though the defence points were brought out in their appeal, but not considered by the Tribunal or discussed their contentions. Therefore, there is mistake apparent on record. He also submits that Tribunal held that Horn Controller was part of horn, whereas they have never advanced this argument. He further submits that non-discussion of their grounds and non-consideration of decisions cited by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he name of rectification of mistake, to re-appreciate the findings. He relied the following case laws :- (1) CCE, Belapur v. RDC Concrete (India) P. Ltd. - 2011 (270) E.L.T. 625 (S.C.) (2) CCE, Calcutta v. A.S.C.U. Ltd. - 2003 (151) E.L.T. 481 (S.C.) (3) V. Ramakrishna Rao v. CC, Chennai - 2011 (267) E.L.T. 293 (Mad.) = 2012 (25) S.T.R. 395 (Mad.) (4) CCE, Pondicherry v. CESTAT - 2014 (299) E.L.T. 166 (Mad.). 4. We have carefully considered the submissions of both sides and perused the application seeking rectification of mistake in the final order dated 20-11-2014 of the Tribunal. Vide final order dated 20-11-2014, this Bench upheld th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35C(2) of the Act. This Court has already laid down law in the case of T.S. Balram v. M/s. Volkart Brothers, 82 ITR 50 to the effect that a 'mistake apparent from the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 22. For the aforestated reasons, we are of the view that the CESTAT exceeded 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." The ratio of the Apex Court decisions are squar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Since the petitioner did not discharge such statutory obligation under Section 129A of the Act in respect of 75% of the payment, the Appellate Tribunal was right in rejecting the appeals. 14. The learned counsel would further add that when once such finality has been reached, by invoking Rule 41, the same cannot be recalled. The purpose of Rule 41 is not to nullify the order where finality has been reached in the proceedings. Therefore, Rule 41 does not come to the rescue of the petitioners. 15. In my considered opinion, if at all the petitioners have any grievance regarding the orders passed dispensing with only 25% of the demanded amount under Section 129E of the Act, the petitioners would have done well by challenging the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed by the Appellate Tribunal." Further, we rely the Hon'ble Supreme Court decision in the case of CCE, Calcutta v. A.S.C.U. Ltd. - 2003 (151) E.L.T. 481 (S.C.), wherein the Apex Court held that any decision on debatable point of law cannot be treated as 'mistake apparent from record'. The ratio of the Hon'ble Apex Court decision and Hon'ble Madras High Court decisions are directly applicable to the facts of the present case. In view of the forgoing discussions and by respectfully following the Hon'ble Apex Court and High Court decisions, we do not find any apparent and manifest mistake in the Tribunal's final order so as to exercise the powers to recall or modify the Final Order No. 40828/2014, dated 20-11-2014. Accordingly, the misc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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