Customs, Excise and Gold Tribunal - Delhi
M/S. Raja Mechanical Co. (P) Ltd. vs C.C.E. Delhi-Iii on 20 March, 2001
ORDER K.K. Bhatia, Member (T)
1. This ROM Petition is filed in respect of Final Order No. A/2180/00/NB(SM) dt. 17.10.2000. The impugned order of the Tribunal is passed in the appeal filed against Order-in-Appeal dt. 1.3.2000 of the Commissioner (Appeals), New Delhi. In that Order, the lower appellate authority had dismissed the appeal of the party on the ground that the appeal was filed on 5.11.98 against Order-in-Original dt. 17.10.97 i.e., after more than 12 months. The lower appellate authority in the order has observed that in terms of proviso to Section 35(1), Commissioner (Appeals) is empowered to condone delay of three months in filing the appeal if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the stipulated period of three months. Accordingly, it is observed that the Commissioner (Appeals) has no power under the Central Excise law to condone delay of more than three months whereas in the case under consideration, the delay was of more than 9 months. Accordingly, the Commissioner (Appeals) dismissed the appeal before her as time barred without going into the merits of the case.
2. On appeal against the above order of the Commissioner (Appeals), the Tribunal upheld the finding arrived at by the said appellate authority and dismissed the appeal of the party. The Tribunal in its order referred to the same provisions of the Central Excise law and observed that the appeal admittedly was filed after a period of more than 9 months, therefore, the Commissioner (Appeals) had no power to condone this delay. The Tribunal further observed that there is no provision nor any had been cited by the appellants, which would empower the appellate Tribunal to condone the delay beyond the statutory period as stated above. Hence, the appeal of the party had rightly been rejected by the Commissioner (Appeals) as time barred and there was no ground or justification to interfere with this order. Accordingly, the appeal of the party is rejected.
3. In the present petition, Shri P.C. Jain, Advocate appearing for the petitioners at the outset very fairly conceded that he does not dispute the findings on the concerned provisions of the Central Excise Act in terms of which the appeal of the petitioner is dismissed by the lower appellate authority and the Tribunal. He also does not dispute the decision arrived at by the Tribunal in its order. He would, however, likes to contend that while considering the case of the appellants in this case, the Tribunal has not adverted to all the points raised in the written Memo of appeal filed by the appellants. The ld. Advocate for the petitioner refers to the pleas made at sl. No.2 & 5 to 9 under the heading "Grounds of Appeal" in their written Memo. These are extracted below:
"2. That the appellant has submitted the original receipted copy of Memorandum of appeal which has been wrongly submitted in the office of Asst. Commissioner MOD-V New Delhi. The ld. Commissioner (Appeals) has not got it verified from the office of Asst. Commissioner whether the such appeal was filed in his office on 16.12.97 and this date i.e. 16.12.97 should have been treated as date of filing the appeal with the Commissioner (Appeals) and not the actual date of filing i.e., 5.11.98.
5. The ld. adjudicating authority has disallowed modvat credit simply on the basis that receipt of capital goods was wrongly shown as 18.6.95 in declaration filed with him u/r 57T(1) instead of 30.6.95 whereas 18.6.95 is the date of invoice of supplier of capital goods of Bombay and by no stretch of imagination the capital goods could arrive from Bombay to Delhi on the same date, hence the order of adjudicating authority to this extent is not sustainable.
6. The Bd. has issued a circular bearing No. 181/15//96 CX dt. 7.3.96 which clearly provide for condoning the delay in filing the declaration which was not considered by the adjudicating authority at all. The Hon'ble Commissioner (Appeals) & CEGAT has allowed modvat credit where the assessee has filed declaration u/r 57T(1) late in cases reported as 89 ELT 793 103 ELT 472 103 ELT 672 104 ELT 657.
7. The Hon'ble Supreme Court has held is cases cited as 94 ELT 460 111 ELT 4 112 ELT 765 that departmental circulars are binding on the departmental authorities as well as appellate authorities and any order passed without considering the relevant circular shall have no binding effect, hence the order of ld. AC is not sustainable.
8. Even if it is assumed that the assessee has filed declaration u/r 57T(1) late the same being procedural lapse do not have the effect of taking away the benefit. The Hon'ble CEGAT has held in plethora of judgements that the modvat rules being beneficial piece of legislature the credit should not be disallowed merely on the basis of hyper technical and procedural lapses if the same is otherwise due to the assessee.
9. The receipt of the said machinery and its utilisation in manufacturing of dutiable final product is not at all disputed as nothing to this extent find place in the order of the adjudicating authority hence in the circumstances and light of the Bd. circular and reported decisions cited above, the order of the ld. Asst. Commissioner is not sustainable nor penalty u/r 173 Q is imposable at all as per CEGAT decision reported as 115 ELT 879. It is therefore requested to favour justice to the assessee by accepting the appeal and quashing the order of the adjudicating authority which is against the cited decisions of Hon'ble Tribunal and also bad in law".
4. The ld. Advocate contends that since the above grounds have not been taken into consideration by the Tribunal in its impugned order and no findings are given on them, there is a mistake in the order apparent on the face of record. Accordingly, it is pleaded that the impugned order may be recalled and the matter remanded to the Commissioner (Appeals) for deciding/passing a de-novo order on merits. Alternatively, the Tribunal itself should go into the merits of the case on the basis of doctrine of the merger and give its decision.
5. Shri S.C. Pushkarna, JDR for the Revenue on the other hand submits that there is no mistake much less any apparent on the face of the record in the impugned order of the Tribunal and the question of rectifying the same does not arise.
6. I have considered the submissions made before me. It is observed that the gravamen of the plea of the petitioners in the present ROM application is that certain points raised in their written memo of appeal have not been considered by the Tribunal in its order which has lead to the mistake apparent on the fade of the record and it calls for rectification by recalling the same. It is seen from the impugned order, that while making the oral submissions before the Bench, the above points were not raised. This is apparent from the submissions of the appellants recorded in para 2 of the order. It is extracted below:
"2. The present appeal is against the above order of Commissioner ((Appeals). I have heard Shri C.S. Gupta, Sr. Manager of the appellant's Firm. The Department is not represented. Ld. Representative of the Appellant's firm has stated that by mistake they filed the appeal on 16.12.97 in the Office of Asst. Commissioner, MOD-V, New Delhi. But when they came to know that the appeal had been filed in wrong office, they filed the same with Commissioner (Appeals) in C.R. Building, New Delhi. It is contended that since appeal was filed in a wrong office due to ignorance on the part of the appellant and the office of Asst. Commissioner, MOD-V also did not return it to them, the delay in filing the appeal due to the said reason may be condone and we may be heard on merits considering the same as filed in-time......"
7. Since all the point contained in the written memo, filed by the appellants were not even raised during the oral submissions made before the Tribunal, the question of giving any findings on the same did not arise and therefore on this ground,no plea of a mistake in the order can be raised. In any case, the Larger Bench of the Tribunal in the case of S/Shri Dinkar Khindria & Dinesh Khindrai vs. CC New Delhi reported in 2000 (38) RLT 442 (CEGAT-L.B), has very categorically held as follows:
"9. On careful consideration of the matter, we hold that a decision which has been validly made by a duly constituted Bench is not open for review on the alleged ground that according to the applicants the decision was erroneous on fact of law. In any case, the Tribunal has no power to review its orders.
This Tribunal is a creation of the statute. Only the powers conferred under the statute, which created it, can be exercised. It has no inherent powers as are available with courts established under the Constitution or Codes of Civil Procedure or Criminal Procedure. This Tribunal under no circumstance can recall an order passed or issued. Under the cover of "rectification of mistake" this Tribunal cannot exercise any power to recall an order validly passed".
8. In view of the position as analysed above and the law laid in the above decision of the Larger Bench of the Tribunal, I am of the view that there is no case made out for rectification of mistake. The present petition is accordingly, rejected.
(Announced and dictated in the Court)