Customs, Excise and Gold Tribunal - Delhi
Laxmi Tobacco Co. vs Commissioner Of Central Excise on 5 November, 1999
Equivalent citations: 2000(115)ELT122(TRI-DEL)
ORDER A.C.C. Unni, Member (J)
1. This is a ROM Application filed by the above-named applicants praying for recall of Final Order No. A/1204/97-NB, dated 26-12-1997 1999 (109) E.L.T. 679 (Tribunal) and for rectifying a mistake apparent on the face of the record appearing in paragraph 6 of the order.
2. Ld. Counsel for the appellants, Shri Ravinder Narain submits that while disposing of the appellant's appeal by the impugned order, the Tribunal had held that the provisions of section 11A relating to limitation are not applicable to cases where notices have been issued under Rule 196 of the Central Excise Rules, 1944. The Bench had relied on the judgment of the Tribunal in U.P. State Cement Corporation Ltd. v. CCE reported in 1995 (79) E.L.T. 179. Ld. Counsel submits that the Bench had not taken into account a later judgement of the Allahabad High Court holding a contrary view, though the said decision had been cited before the Tribunal at the time of hearing the appeal on merits. In this connection, he also refers to the Stay Order dated 27-8-1996 in which the Bench considering the Stay Application had noted the submissions of the assessee's Counsel relying on the said Allahabad High Court judgment holding that the demand of duty under Rule 196 will be governed by the provisions of Section HA of the Central Excise Act. He, therefore submits that having regard to the decision of the Hon'ble Allahabad High Court, the impugned Final Order may be recalled and the mistake pointed out above rectified. In this connection, he relied on two earlier decisions of this Tribunal, viz., Vishwakarma Corporation Ltd. v. CCE, Kanpur, 1994 (74) E.L.T. 363 (Tribunal) and West Coast Industrial Gases Ltd. v. CCE, Cochin, 1998 (104) E.L.T. 478 (Tribunal). In the Vishwakarma Corporation Ltd. case, the Tribunal had held that if the Final Order of the Tribunal omits to mention cases which the appellant considers relevant to the issue involved, it would constitute an error apparent on the face of the record. In the West Coast Industrial Gases Ltd. also it was held that non-consideration of judicial precedents cited before the Tribunal but not considered while passing the order would be an error apparent on the face of the record making the order liable to recall.
3. Ld. JDR, Shri T.A. Arunachalam leaves it to the Bench.
4. We have heard the submissions of the ld. JDR and have perused the records. It is observed that in paragraph 6 of the Final Order referred to above, the Tribunal had cited and relied on its own decision in U.P. State Cement Corporation Ltd. reported in 1995 (79) E.L.T. 179, in which it was held that the limitation prescribed under Section 11A will not be applicable to cases arising under Rule 196. There is no mention of the Allahabad High Court judgment referred to by the ld. Counsel holding the opposite view in the Final Order. We also notice that the said judgment of the Allahabad High Court had been relied on by the Counsel for the appellants at the time of arguing the Stay Application and in the Stay Order dated 27-8-1996, mention has been made of the said judgment of the Hon'ble Allahabad High Court.
5. Taking note of the two Tribunal decisions relied on by the ld. Counsel holding that non-consideration of judicial precedents cited before the Tribunal while passing the order would amount to an error apparent on the face of the record, we accept the submissions of the ld. Counsel for the applicants and hereby recall the Final Order No. A/1204/97-NB 1999 (109) E.L.T. 679 (Tribunal). Accordingly, the prayer of the applicants for recalling the Final Order dated 26-12-1997 insofar as it relates to the issue of time bar for issuing Show Cause Notice is allowed. Their further prayer for grant of hearing on this aspect is also allowed.
6. Registry is accordingly directed to fix an early date for hearing the said matter. Thereafter notice be issued.
7. Action Registry.