Customs, Excise and Gold Tribunal - Delhi
Gujarat Narmada Valley Fertilisers Co. ... vs C.C.E. on 29 August, 1995
Equivalent citations: 1996(81)ELT334(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. This is an application purporting to be under Sub-section (2) of Section 35C of the Central Excise and Salt Act, 1944 to amend the Final Order No. 248/94-C, dated 30-8-1994 passed by this Tribunal in A. No. E/4006/92-C with a view to rectify the alleged mistake said to be apparent from the record.
2. Arguing on the application Shri D. Dave, Ld. Counsel submitted that an alternative plea for re-determination of duty amount at a lower rate in the event of failure of the appeal on merits was taken up as a ground No.15 in the Memorandum of Appeal filed by the appellants. This alternative plea was also taken up before the Collector (Appeals) as could be seen from para 6 of the Order-in-Appeal and as a matter of fact at the time of consideration of the stay application filed along with the appeal before this Tribunal the Bench also took note of the said alternative plea. In this premises he submitted that the omission of any findings on the aforesaid plea in the said Final Order No. 248/94-C, dated 30-8-1994 seems to be mistake apparent on record requiring rectification by recalling the order and giving findings on the said alternative plea. He also submitted that for the subsequent period the benefit of lower rate has been given by the authorities below.
3. In reply it was contended by Shri Sharad Bhansali, Ld. SDR, that the alternative case of the appellants regarding the re-determination of duty amount at a lower rate in the event of the failure of the appellants on merits was never argued before the Bench during the hearing of the appeal. And, therefore, it was not considered by the Bench while passing the said Final Order. He submitted that in the application in hand for rectification of mistake, it is not stated by the appellants that the said alternative case of the appellants regarding the re-determination of the duty amount at a lower rate was argued before the Bench hearing the appeal and if that is so no question of considering such a alternative case of the appellants arose before the Tribunal and consequently no finding was recorded by the Tribunal while passing the said Final order. He submitted that in the guise of the present ROM application the case cannot be re-opened when there is no error apparent from the record.
4. On being pointed out by the Bench that there is no averment in the present application that the said alternative case of the appellants regarding the re-determination of a duty amount at a lower rate was argued before the Bench hearing the appeal, Shri Dave, Ld. Counsel admitted that it is true that there is no such averment and left the matter to the discretion of the Bench.
5. Considered. From the Final Order No. 248/94-C, dated 30-8-1994 passed in the present case it is clear that alternative plea for re-determination of duty amount at a lower rate was not argued during the course of the hearing of the appeal on merits. Even in the application in hand for rectification of the alleged mistake, it is not stated that the said alternative case of the appellants was argued during the hearing. Therefore, the question of considering the same and recording the findings by the Tribunal while passing the final order did not arise. The contention of the Ld. Counsel that the said alternative case was argued before the lower authorities or it was taken up as a ground in the Memorandum of Appeal or at the time of hearing of the stay application cannot be a ground to recall the Final Order passed in the instant case when the said alternative case was not argued during the hearing of the appeal on merits as it is the discretion of the appellants or his counsel to argue or not to argue a point, though, taken up in the Memorandum of Appeal as a ground of appeal. It is settled law that while exercising powers of rectifying the mistake, if any, under Sub-section (2) of Section 35 C of Central Excises and Salt Act, 1944, we cannot reopen a case or recall our earlier order merely because the appellants want to put forth his alternative case now which was not argued during the hearing of the appeal though taken up in the Memorandum of Appeal. In case the appellants feel that they failed to argue their said alternative case the remedy lies elsewhere and certainly not before this Tribunal by filing the present application.
6. In the result, the application is rejected.