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TMI Blog2018 (9) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 2016, it appears from the record that the rectification application was filed nearly six months later. Therefore, only on the question of limitation, rectification application could have been dismissed by the Tribunal; though Tribunal did not advert to this aspect of the matter. When the High Court dismissed the appeal of assessee in the earlier round of litigation, it merely kept liberty open to the assessee to approach the Tribunal by filing rectification application; if it was open for the appellant to do so. The High Court did not mandate the Tribunal to either entertain such an application or open an avenue; which otherwise may have been closed. Tax appeal dismissed. - R/TAX APPEAL No. 1079 of 2018 - - - Dated:- 30-8-2018 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. He pointed out that the term specified record used in the said provision has now been defined by including an explanation to Section 78. However, we notice that such contention was never raised before the Tribunal and being a mixed question of law and facts, we do not permit same before us for the first time. However, if it is open for the appellant to file a rectification application before the Tribunal on such basis, we do not prevent him from doing so. Tax Appeal is therefore dismissed. The assessee thereupon approached the Tribunal again in an application filed for rectification. Such rectification application came to be dismissed by the impugned order in which the Tribunal held that the assessee had not raised such a contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and make orders under the Central Excise Act, 1944. Thus, the jurisdiction, scope and procedure to be followed by the Tribunal while hearing the appeals under Section 86 of the Finance Act, 1994 are borrowed by reference from the Central Excise Act, 1944. It is undisputed that Section 35C of the Central Excise Act, 1944 which pertains to Orders of Appellate Tribunal provides under sub-section [2] thereof that the Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been dismissed by the Tribunal; though Tribunal did not advert to this aspect of the matter. When the High Court dismissed the appeal of assessee in the earlier round of litigation, it merely kept liberty open to the assessee to approach the Tribunal by filing rectification application; if it was open for the appellant to do so. The High Court did not mandate the Tribunal to either entertain such an application or open an avenue; which otherwise may have been closed. Even otherwise, we do not think that the Tribunal has committed any error. The Tribunal recorded that all along, the assessee had never raised such a contention. Before the lower authorities or before the Tribunal, no such ground was raised. Learned advocate Shri Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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