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TMI Blog2024 (6) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excises and Salt Act, 1944. The Larger Bench construed that the order passed under 35C of the said Act is a final order and not an order deciding the reference. In this view of the matter if an application for rectification of mistake of any order passed under sub-section (1) of section 35C of the Central Excise Act can only be filed, the present application filed for rectification of mistake of an interim order of the Larger Bench deciding the reference, would not be maintainable. The same position was reiterated by a Larger Bench of the Tribunal consisting of Three Members in Hico Enterprises [ 2005 (11) TMI 104 - CESTAT, MUMBAI ]. This was a case where the rectification of mistake application was filed under sub-section (2) of section 129B of the Customs Act 1962 [the Customs Act]. Sub-section (2) of section 129B, which deals with rectification of mistake, refers to an order passed under sub-section (1) and sub-section (1) of section 129B is identical to sub-section (1) section 35C of the Central Excise Act. The Larger Bench of the Tribunal held that the order answering the reference is not a final order and so the application filed for rectification of mistake in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the said judgment on the limitation of applying the dictionary meaning to an expression not defined in a statute. (ii) The second mistake that has been pointed out is that the expression known in common parlance appearing in the reference order has not been considered in the light of the submissions made by the Revenue and there is no discussion as to why the understanding of a layman is to be preferred over the criterion of trade parlance or commercial parlance . (iii) The third mistake that has been pointed out is that in paragraph 59 of the order it has been stated that the word automobile is properly understood as a car and some dictionaries extend the meaning of the word automobiles to vehicles carrying small quantity of goods , but the source of this statement has not been mentioned in the order. (iv) The fourth mistake that has been pointed out is that the Circulars dated 11.07.1990, 16.12.2008 and 17.03.1990 have no bearing on the issues referred to the Larger Bench and even though this contention was raised by the Revenue during the oral submissions, but this submission of the Revenue has not been discussed or commented upon. (v) The fifth mistake that has been point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out by the Revenue in the Rectification of Mistake Application, it has been contended that the limitation of applying the dictionary meaning to an expression not defined in a statute comes into play only when the dictionary meaning is not uniform. In the present case, the dictionaries uniformly define automobile as a four-wheeled vehicle usually designed for passenger transportation. When a word is not defined in the statute, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. Hence, ordinary meaning/ common meaning is relevant and dictionaries can be referred to for ascertaining its meaning. In this connection reference has been made to the decision of the Supreme Court in CIT vs. Venkateswara Hatcheries (P) Ltd [(1999) 3 SCC 632 (S.C.)]. (iv) With regard to the second mistake pointed out in the Rectification of Mistake Application, it has been contended that automobile is not a scientific or a technical term but a term of ordinary usage. Therefore, ordinary meaning/ common meaning would be relevant and dictionaries can be safely referred to for ascertaining its meaning. The first issue in the referral ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1) and sub-section (2) of section 35C of the Central Excise Act and, therefore, it would be appropriate to reproduce the same. 35C. Orders of Appellate Tribunal (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2) 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 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 Central Excise or Commissioner of Central Excise or the other party to the appeal: PROVIDED that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the authority. Under sub-section (2) of section 35C the Tribunal, may with a view to rectifying any mistake apparent from the record, amend any order passed under sub-section (1) of section 35C. 12. Learned senior counsel opposing the applications have placed reliance upon a Larger Bench decision of Five Members of the Tribunal in Lal Chand Anand. In this case, the Special Bench of the Tribunal had referred an issue to a Larger Bench of the Tribunal consisting of Five Members and the Larger Bench answered the reference. However, the department had some reservations on the opinion recorded by the Larger Bench and, therefore, sought a reference under section 35G(1) of the Central Excises and Salt Act, 1944 to the High Court on points of law, which according to the department arose from the referring order. The Tribunal was required to draw a statement of law on those points. The issue that arose for consideration before the Larger Bench was whether the reference on the points of law sought by the department was maintainable or not. 13. Sub-section (1) and (2) of section 35C and sub-section (1) of section 35G of the Central Excises and Salt Act, 1944, which were examined by the Larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat under section 35-G(1) of the Central Excises and Salt Act, 1944, the reference applications would lie only out of orders passed under section 35-C of the said Act and under this section the order finally disposes of an appeal. This is for the reason that it provides that the Tribunal, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order, with such directions as the Tribunal may think fit. The contention that was sought to be advanced by the learned counsel pressing the applications was that the Larger Bench had, while deciding the reference, disposed of that point and the concerned Special Bench would be bound by the said order and so the reference order should be considered as a final order. This contention was not accepted by the Larger Bench for the reason that an order under section 35-C has to finally dispose of the appeal and not a specific point. The relevant portion of the order of the Larger Bench is reproduced below: 8. We now proceed to take up the two Refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We accordingly dismiss all the three Reference applications. (emphasis supplied) 15. What transpires from the aforesaid decision is that an application filed for rectification of mistake of an order deciding a reference made by a Division Bench of the Tribunal to a Larger Bench of the Tribunal would not be maintainable for the reason that the order deciding the reference does not finally decide the appeal. 16. The decision of the Larger Bench of the Tribunal in Lal Chand Anand would apply to the facts of the present case. Section 35C of the Central Excise Act is identical to section 35C of the Central Excises and Salt Act, 1944. The Larger Bench construed that the order passed under 35C of the said Act is a final order and not an order deciding the reference. In this view of the matter if an application for rectification of mistake of any order passed under sub-section (1) of section 35C of the Central Excise Act can only be filed, the present application filed for rectification of mistake of an interim order of the Larger Bench deciding the reference, would not be maintainable. 17. The same position was reiterated by a Larger Bench of the Tribunal consisting of Three Members in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1) of Section 129B of the Customs Act. Our view is further strengthened in the light of Larger Bench s decision of the Tribunal at New Delhi in the case of Collector of Central Excise, Meerut Others v. Lal Chand Anand . Others reported in 1986 (23) E.L.T. 530 (Tribunal). (Emphasis supplied) 18. Learned special counsel for the department, on the other hand, relied upon a decision of the Supreme Court in Honda Siel Power Products. Section 154 of Income Tax Act, 1961 which provides for rectification of any mistake apparent from the record by any Income Tax authority came up for interpretation. The expression rectification of mistake from the record also occurs in section 254(2) of the Income Tax Act. While dealing with the scope of the power of rectification, the Supreme Court observed: 12. As stated above, in this case we are concerned with the application under section 254(2) of the 1961 Act. As stated above, the expression rectification of mistake from the record occurs in section 154. It also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification. This decision would, therefore, not help the department. 20. Learned special counsel for the department also placed reliance upon a decision of a Division Bench of the Tribunal in Shreya Life Sciences. This decision also does not come to the aid of the department as all that it decides is that failure to consider case laws cited by the parties would amount to a mistake apparent on the face of the record. 21. The contention advanced by the learned special counsel for the department that the order passed by the Larger Bench of the Tribunal deciding the reference should be treated as a final order for the purposes of section 35C(1) of the Central Excise Act as the Division Bench would ultimately be bound by the order of the Larger Bench cannot also be accepted in view of the decision of the Larger Bench of the Tribunal consisting of Five Members in Lal Chand Anand. 22. The inevitable conclusion that flows from the aforesaid discussion is that the present applications filed by the department for rectification of mistakes in the interim order dated 06.06.2023 passed by the Larger Bench of the Tribunal answering the reference made by a Division Bench of the Tribunal, are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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