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TMI Blog2019 (12) TMI 1675X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 (2) TMI 200 - GUJARAT HIGH COURT] where it is held It is reported that the rectification application was submitted within the period of six months from the date of receipt of the order/dispatch order, and therefore, the impugned order passed by the learned CESTAT cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the learned Tribunal to consider the rectification application in accordance with law and on its own merits treating the same to have been filed within the period of limitation provided under the Act. Further, reliance was placed on the decision of VADILAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 2005 (12) TMI 103 - HIGH COURT OF GUJARAT AT AHMEDABAD] , wherein it is held that relevant date of six months for filing of ROM has to be reckoned from the date of receipt of the order by the appellant. Thus, it is found that any person will notice error apparent in the order only when he receives the order and examine it. This aspect is based on the various decisions of the High Courts referred above - it is thus concluded that the relevant date for computation of six months, as envisaged in the provision of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of have not been established satisfactorily; (iii) That the Tribunal failed to consider the argument raised by the appellant, regarding the admission of statement of Shri Alok Aggarwal in the impugned final order without appreciating the settled law as laid down by Hon‟ble Punjab Haryana High Court in the case Jindal Drugs Pvt. Ltd. Vs. Union of India 2016 (340) ELT 67 (P H) and decision of Hon‟ble Tribunal in case of CCE, Delhi-I Vs. Kuber Tobacco India Ltd. 2016 (338) ELT 113 (Tri.-Del.) and many other judgements such as Flevel International Vs. CCE - 2016 (332) ELT 416 (Del.) and Arya Fibres Pvt. Ltd. Vs. CCE, Ahmedabad-II - 2014 (311) ELT 529 (Tri.-Ahmd.); (iv) That in the impugned order the statement of Shri Alok Aggarwal has solely been relied upon considering the same to be clear admission, which in fact has been retracted before the Secretary to Government of India, New Delhi, at the earliest possible opportunity. Accordingly, it was prayed that the Tribunal has committed an error, which is apparent from the record of the case by not considering the various precedent judgments in the subject matter of the case of clandestine removal, which were agitated in the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on 4.1.2019. The ROM has been filed on 4.1.2019 which is within six months of the receipt of this Tribunal‟s order placing reliance on the following case laws : (a) Liladhar T. Khustani Vs. Commissioner of Customs 2017 (351) ELT 36 (Guj.); (b) Allied Fibres Ltd. Vs. CC (Import) 2017 (357) ELT 123 (Bom.); (c) Vadilal Industries Ltd. Vs. Union of India 2006 (197) ELT 160 (Guj.); (d) Garlon Polyfab Industries Vs. CCE, Kanpur 2015 (323) ELT 340 (All.); (e) Balaji Rollings Pvt. Ltd. Vs. CCE, Goa 2009 (246) ELT 269 (Tri,.-Mum.). 2.1 He, therefore, prayed that this Tribunal may recall its own order and considered the appeal afresh placing reliance on the following decisions: (i) Continental Cement Company Vs. Union of India 2014 (309) ELT 411 (All.); (ii) Sakeen Alloys Pvt. Ltd. Vs. CCE, Ahmedabad 2013 (296) ELT 292; (iii) CCE Vs. Auto Gollon Industries (P) Ltd. Vs. CCE, Delhi-IV 2018 (360) ELT 29 (All.); (iv) Century Metal Recycling Pvt. Ltd. Vs. CCE, DelhiIV- 2016 (333) ELT 483; (v) R.A. Casting Pvt. Ltd. Vs. CCE, Meerut-I - 2009 (237) ELT 674; (vi) Commissioner of C. Excise, Meerut-I Vs. RA Castings Pvt. Ltd. 2012 (26) STR 262 (All.); (vii) Commissioner Vs. R.A. Casting Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said decision, it appears that the controversy was whether despite the specific provisions not to condone the delay beyond the period of limitation provided under the statute, whether High Court was justified to condone the delay in filing the rectification application or not, and therefore, as such, the learned CESTAT has wrongly relied upon the decision of the Hon‟ble Supreme Court in the case of M/s. Hongo India (P) Ltd. Anr. (supra). As such, the question involved in the present Appeal is now not res integra in view of the decision of the Division Bench of this Court in the case of Vadilal Industries Ltd. v. Union of India reported in 2006 (197) E.L.T. 160 (Gujarat). In the said decision while considering the provisions of the Central Excise Act, 1944, more particularly, Section 37C, the Division Bench has held that the period of limitation to file the rectification application is to be computed from the date of receipt of order by the party and not at any time within six months from the date of the order. While holding so, in Paragraph Nos. 14 to 16 the Division Bench has observed and held as under; 14. There is one more aspect of the matter. The Technical Officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t similar question came to be considered by the learned Single Judge in the case of Ritaben Kamleshbhai Mehta, Through P.O.A. Devang Kamleshbhai Mehta Ors. v. State of Gujarat Ors. reported in 2015 (2) GLR 1664. Before the learned Single Judge the question was whether the period of limitation to file the Appeal against the order of Deputy Collector, which was 90 days is required to be computed from the date on which the order of first adjudicatory authority communicated to the affected person or from the date of the order and considering the decision of the Hon‟ble Supreme Court in the case of D. Saibaba v. Bar Council of India reported in AIR 2003 SC 2502, it is observed and held that the period of limitation shall commence from the date of dispatch of the order and not from the date of actual passing of the order. In view of the above, the learned CESTAT has committed a grave error in rejecting the rectification application on the ground that the same has been preferred beyond the period of limitation prescribed under the Act. It is reported that the rectification application was submitted within the period of six months from the date of receipt of the order/dispatch order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as under : 129B. Orders of Appellate Tribunal. - (1) The Appellate Tribunal may, at any time within six months from (2) the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Principal Commissioner of Customs or Commissioner of Customs or the other party to the appeal : Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 7.Admittedly, the appellant received the copy of order dated 9-1-2015. The application for rectification was filed by the appellant on 9-6-2015. The Tribunal, therefore, in view of the stated provision and the judgment so referred in the order, rejected the application. That resulted into rejection of the appeal on merit itself. 8.The provision so reproduced above itself provides that the Tribunal suo motu need to rectify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months from the date of the order does not fit in either with legislative intent or the language employed by the provision. There is another angle from which the matter can be approached. It 15 is only the party to the appeal who finds that the order contains a mistake apparent from the record and is aggrieved by such mistake, would be in a position to move an application seeking rectification of the order. Therefore also, unless and until a party to the appeal is in a position to go through and study the order it would not be possible, nor can it be envisaged, that a party can claim to be aggrieved by the mistake apparent from the record. Hence, even on this count the period of limitation has to be read and understood so as to mean from the date of the receipt of the order. We are also of the same view referring to the similar provision so reproduced above. Under Customs Act the party to the appeal, other party, as per the second part of the section, can apply for rectification of the mistake. Therefore, it is necessary for the party to see and verify the order so passed. That can only be done after receipt of the same. Therefore, the application for rectification filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o filed under the same provision from the receipt of order is within limitation. Such application cannot be liable to be dismissed as sought to be contended by the Department. 12.Therefore, taking overall view of the matter, we are inclined to interfere with the order so passed by holding that the second part of the Section read to mean that the appeal/application may be filed within six months from the receipt of the order . Further, reliance was placed on the decision of Vadilal Industries Ltd. (supra), wherein it is held that relevant date of six months for filing of ROM has to be reckoned from the date of receipt of the order by the appellant. The relevant portion of the order is extracted as under: 2.Heard Mr. Paresh. M. Dave, learned Advocate for the petitioners. Rule. Mr. Malkan waives service of notice of rule on behalf of the respondents. The matter is taken up for final hearing and disposal today in light of the fact that the controversy lies in a very narrow compass. 3.The bare facts necessary for appreciating the controversy are such that the petitioner had taken over a partnership firm namely, M/s. Gujarat Cup Company from January, 2003. The said firm was manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner had not received the certified copy from the Tribunal, had made an application for the same being furnished and on the basis of the xerox copy received from the office of respondent No. 3 moved ROM application. Therefore, according to Mr. Dave, the period of six months could be computed only from 18-7-2005 at the earliest. And if this date was taken as the starting point of period of limitation, the ROM application was within the period of limitation. He also submitted that provisions of Section 35C(2) of the Central Excise Act, 1944 (the Act) which used the words from the date of the order‟ had to be construed to mean from the date of receipt of order and for this purpose placed reliance on various authorities, including the decisions rendered by the Apex Court. He also contended that the Technical Officer could not have returned the papers without placing the same before the Bench of the Tribunal as it was the Tribunal which had the authority to decide the ROM Application. 8.Resisting the case of the petitioner Mr. Malkan on behalf of the respondents, namely respondent Nos. 1 and 3, submitted that no fault could be found with CESTAT as it had done everything wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same shall be done by affixing a copy thereof to some conspicuous part of the factory etc; and lastly, in the event of failure to effect service by the mode prescribed under clause (b) , clause (c) provides that the service be effected by affixing a copy thereof on the notice board of the officer or authority who or which made the order etc. Under sub-section (2) of Section 37C of the Act, a statutory presumption is provided wherein it is laid down that the service will be deemed to have been effected if the decision, order etc. is tendered or delivered by post or a copy thereof is affixed in the manner laid down in sub-section (1) of Section 37C of the Act. In this regard, we find that any person will notice error apparent in the order only when he receives the order and examine it. This aspect is based on the various decisions of the High Courts referred above. We, therefore, conclude that the relevant date for computation of six months, as envisaged in the provision of Section 35C(2) of the Central Excise Act, will be from date of receipt of the order by the appellant. The Chandigarh Bench of the Tribunal has occasion to examine the issue on the direction of Hon‟ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parimateria to Section 35C(2) of Central Excise Act, 1944 and hence the decision of Sunitadevi Singhania Hospital Trust will be applicable to Central Excise Act, as well In the circumstances, we are of the opinion that this ROM is maintainable being filed within the period of limitation. The preliminary objection raised by the Departmental Representative is, therefore, overruled. 6. Further, coming to the merits of this application, we find that all the submissions made by the appellant were not considered by the Tribunal except it got swayed by the admission on part of Shri Alok Aggaral, proprietor of the appellant accepting the clandestine removal. It is apparent from the record that the provision of Section 9D of the Central Excise Act, 1944 as mentioned to have been submitted by appellant, have not been considered while adjudicating the case rather reliance on the third party evidences for alleged clandestine removal of manufactured goods by the appellant. The fact that the appeal of said third party i.e. Hind Metal (supra) which is the basis for investigation against the appellant was allowed however, previous Counsel is mentioned to have not brought the same to the notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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