9911796707
TMI Blog2001 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... gave finding on them. The appeal was against the order of the Collector (Appeals) holding that the claim was barred by limitation. Ground (m) in the memorandum of appeal is that the erroneous payment of refund cannot be recovered unless notice under Section 11A was issued within the time limit provided in that Section. Therefore the order is illegal contrary to law. It is not in dispute that this ground was not raised before the Bench by the Counsel for the applicant and the Tribunal has not given any finding upon this ground. It is now contended before us that failure to consider a ground mentioned in the appeal and not expressly given up at the hearing is a mistake of the kind specified in Section 35C(2) of the Act and the Tribunal's orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng powers contained in Section 35C of the Act. It expressed the view that such an exercise would amount to review of an order. The mistake attributed to the Bench that decided the appeal out of which the application arises is this. It is settled by the judgment of the Supreme Court in CCE v. Re-Rolling Mills [1997 (94) E.L.T. 8] confirming the decision of the Tribunal appealed to that Court that in order to recover refund erroneously granted a valid notice under Section 11A must be issued, i.e. claim correct in law cannot be denied. The Tribunal has consistently held [see Rosemount (India) Ltd. v. CCE [1998 (99) E.L.T. 502] that the words of the Section 11A of the Act require in order to recover refund erroneously granted notice under that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an apparent mistake which it requires to be rectified. Collector v. Pradumna Steel Ltd. [1996 (82) E.L.T. 441]. 6. It is clear from these decisions that the Tribunal has committed a mistake apparent in not considering the judgment of the Supreme Court. The question now is whether it would be a mistake apparent on record for the reason that the ground relating to this point was not raised. The Tribunal in its decision in CCE v. EID Parry (India) Ltd. [1989 (40) E.L.T. 139] has held that the "record consists of all materials in proceedings and include a file of the Collector from which the authorisation issued by the Collector to the Superintendent to file the appeal (the appeal having been signed by the Superintendent) was contained. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mistake of the representatives of the parties before it, must be corrected if it is brought to the notice of the Bench so long as that mistake is apparent on the record. Such a mistake is glaring and obvious. Poothundu Plantations Pvt. Ltd. v. Agricultural Income Tax [1996 SCC 499; Para 5]. A mistake which is only discovered after on long arguments and debate is not glaring and obvious. It is this condition which distinguishes an application for rectification of a mistake from a review of the order. Where the mistake is not obvious and apparent but is the result of a debate which could lead to a conclusion other than the one arrived at. The point at the issue is not borne out of an error. What is embarked upon is clearly a review of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
