Customs, Excise and Gold Tribunal - Delhi
Priya Corporation vs Collector Of Central Excise on 26 April, 1993
Equivalent citations: 1993(68)ELT90(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. This is an application filed by the applicants under Section 35C(2) of the Central Excises and Salt Act, 1944 for rectification of mistake in Order No. 200/89-B1 dated 23-11-1989 passed by the Tribunal on the ground that some mistakes have crept in the said order.
2. Arguing for the applicants, in support of the application, Shri A.K. Jain, learned Advocate, pointed out that there is a mistake in para 7 of the said order. Para 7 of the said order reads as follows :-
"The third point i.e. classification of monoblocs as part of electric motors or otherwise cannot be considered at this stage as objected by the learned DR in view of the fact that this was neither an issue before the adjudicating authority nor was a ground taken by the appellants in the Memorandum of Appeal. Hence, this plea is rejected and we are left only with the two issues."
3. Referring to para 7, he said that classification issue can be raised at any stage and this was the view consistently taken by the Tribunal and, accordingly, since this issue was not considered in this case, this is an error which requires to be rectified.
4. He drew our attention to para 17 of the said order which runs as under :-
"In view of the above, we have taken that the appellants have adopted the dubious method in not disclosing the true facts to the Department and filed different declarations as diversified activities which is not permissible on facts in the eye of law which amount to clear case of suppression of facts and in view of these facts and circumstances the Department was justified in raising the demand by invoking the larger period."
He said that the Tribunal has taken a view that in not disclosing the true facts to the Department and filing different declarations as diversified activities which is not permissible in the eye of law and, according to him, there is no such provision. Accordingly, this conclusion is an error which requires to be rectified.
5. Next he contended that demand in the instant case is under Rule 9(2) of the Central Excise Rules and the Collector was not empowered to adjudicate the proceedings with reference to demand under Rule 9(2) of the Central Excise Rules prior to 16-12-1985 as it was held in the case of Meghmani Dyes & Intermediates v. Collector of Central Excise, Vadodara, reported in 1991 (17) ETR 434 and the same ratio was followed by the Tribunal as per Order No. 84/91-C dated 28-1-1991 in case of Finolex Cables Limited v. Collector of Central Excise. In the instant case since the order was adjudicated by the Additional Collector prior to 16-12-1985 with reference to Rule 9(2) of the Central Excise Rules, the order passed by him is without jurisdiction and the same can be rectified as it was observed by the Bombay High Court in the case of Blue Star Engineering Company (Bombay) (P.) Ltd. v. Commissioner of Income-Tax, Bombay City, reported in 1969 (73) E.T.R. 283, wherein it was held that under Section 154, the power to rectify the error must extend to the elimination of the error even though the error may be such as to go to the root of the order and its elimination may result in the whole order falling to the ground. He said that Bench of I.T.A.T., Hyderabad in the case of Income-Tax Officer v. Bangaru Manikyam, has taken the view that mistake is apparent if it is contrary to the subsequent decision of the Supreme Court. He said that Tribunal has rectified the similar mistake in the case of Dalmia Laminators, Calcutta v. Collector of Central Excise, Calcutta, reported-in 1991 (17) E.T.R. 674, following the subsequent decision of the High Court in deciding the classification issue in view of the ratio of the decision of the Supreme Court in the case of SAL Narayana Raw v. Model Mills, Nagpur, reported in 1967 (64) I.T.R. 67. He contended that latter decision of the Supreme Court or the High Court or of the Tribunal is a good ground for rectification of an earlier order as it was an error apparent on the record.
6. Shri S.K. Sharma, learned JDR for the Revenue submitted that it is true that classification issue can be raised at any stage and if the Tribunal had considered this issue at that time, the case would have been remanded on this issue. Since that plea was not considered at that stage, it is not open to the party to raise this issue now and, accordingly, the same cannot be considered as a mistake to be rectified.
7. As regards para 17 of the said order, he submitted that this is an appreciation of facts and conclusion arrived at by the Tribunal based upon the facts cannot be considered as an error to be rectified. He contended that view taken by the Tribunal in a particular case cannot be rectified as a mistake apparent from the record in view of the latter decision.
8. We have carefully considered the submissions made by both sides and perused the record. Classification issue can be raised at any time provided sufficient material was already on record but the same was not considered at the lower level. However, in the instant case, since the Tribunal has taken the view that issue with reference to the classification of Monoblocs cannot be taken at the later stage as it was not an issue before the lower authorities and such rejection cannot be considered to be a mistake apparent from the record. It is well settled proposition of law that power of review of his own order is not inherent in any authority and in the guise of rectification of mistake, we cannot review our own order. With reference to para 17 of the order, we find that this is an appreciation of facts and conclusion arrived at by the Tribunal cannot be considered to be an error apparent from the record to be rectified as it was rightly argued by the Departmental Representative.
9. The point raised by the learned Counsel for the applicants with reference to Rule 9(2) of the Central Excise Rules was neither an issue raised by the appellants during the course of hearing nor considered by the Tribunal. We take note of the observations made by the Tribunal in the case of Saurashtra Cement & Chemicals Industries Ltd. v. Collector of Customs, Ahmedabad, reported in 1987 (29) E.L.T. 87 (Tribunal) that if the Tribunal had adopted its own interpretation and not the one convassed by the party to the case, then it is not something that could be called a mistake apparent from the record within the scope of Section 129B(2) of the Customs Act, 1962. Tribunal has no power to review its own order by adopting a different interpretation. The right remedy for convassing a different interpretation was to file an appeal before the Supreme Court under Section 130E of the Customs Act against the order of the Tribunal. Further, it is clear that a later order of the Tribunal giving a different interpretation does not make its earlier order a mistake. In the instant case, since the issue with reference to Rule 9(2) was neither argued nor considered, it does not arise out of the order and, accordingly, it cannot be said that it is a mistake apparent from the record. It is a well settled proposition of law that a mistake which is sought to be rectified in the order of the Tribunal must be one which is apparent on the face of the record and not the one which is required to be established by a long drawn out process of reasonings or the point on which there may conceivably be more than one opinion. Since we are not convinced with the arguments advanced by the learned Counsel for the applicants on any point at issue, we do not find any merits in this application, and accordingly, application for rectification of mistake filed by the applicants is hereby rejected.