COLLECTOR OF CENTRAL EXCISE Vs. INDIAN CABLE CO LTD
LAWS(CE)-1991-4-6
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on April 16,1991

Appellant
VERSUS
Respondents

JUDGEMENT

K. Sankararaman, Member (T) - (1.) THESE are two Applications by the Collector of Central Excise, Patna to this Tribunal for referring the following points to the Honourable High Court of Patna in terms of Section 35G(1) of the Central Excises and Salt Act, 1944: "(a) Whether CEGAT a quasi-judicial authority can recall/rectify their own order passed without granting opportunity to the other party to represent their case and also recall the original order and whether the same will not amount to review of their own order under the provisions of Central Excises and Salt Act, 1944. (b) Whether Hon'ble CEGAT can admit a miscellaneous petition of a party aggrieved by order of the CEGAT, (which is not being an order having relating to rate of duty) when there is specific statutory provision for filing Reference Application under Sec. 35G(1) of the Central Excises and Salt Act, 1944." In this case, this Bench had originally passed two orders allowing the appeals filed by the Collector of Central Excise challenging the orders-in-appeal passed by the Collector of Central Excise (Appeals), Calcutta and set aside the same. A Miscellaneous Application was filed by the respondents therein, M/s. Indian Cable Co. Ltd. that they had not been served with copies of the order and that they had not received the notice of hearing for the appeal. The order passed ex parte was challenged by them on that ground. Their application for rectifications was opposed when it came up for hearing by the Senior Departmental Representative on the ground that it was not a case of error apparent from the record. He referred to a judgment of the Delhi High Court reported vide in the case of Commissioner of Income Tax v. K.L. Bhatia 1989 (25) ECR 283 for his stand that the matter was not one for rectification. This Bench after considering the arguments of both sides and taking into account the ratio of the judgment cited by the learned S.D.R. recalled the earlier orders passed by it for fresh hearing. The Delhi High Court judgment laid down that the Tribunal has the ancillary power to cancel an earlier order only when there is a procedural defect and not for rehearing the case on merits.
(2.) In the present reference applications it has been reiterated that the fact that the order has been passed ex parte does not come within the ambit of mistake apparent from the facts of the case but is a procedural lapse/mistake. Such a procedural mistake does not qualify the words "Rectification of Mistake apparent from the records". Rectification on the above count will amount to modification of the earlier order which tantamounts to review of the order which is not the essence of Section 35C(2). Reliance has been placed on the judgments of the Honourable Madras High Court in the case of C.I.T. v. R. Chelladurai reported in 1979 (1187) ITR 108 Madras and of the Honourable Calcutta High Court in 1980 (122) ITR 519 (Cal.) holding that the power to rectify a mistake which is apparent from the record does not include power to review. When the Reference Applications were posted for hearing, Shri M.N. Biswas, learned Senior Departmental Representative argued the Collector's case. He reiterated the arguments contained in the Reference Applications.
(3.) SHRI N. Mookherjee, learned Counsel for the respondents submitted that from the records of the case the Tribunal had found that they had not been sent a copy of the appeal. They had also submitted that they had not received the notice of hearing for the appeal. It was on these grounds that the Tribunal had recalled their earlier ex parte order. The case is squarely covered by Section 35C(2) of the Central Excises and Salt Act. Rectification is a special power open to the Tribunal to rectify mistakes in their order which they can correct themselves when it is brought to their notice. Our attention was also invited to the decision of the Tribunal in Pradyumna Steel Ltd. v. Collector of Central Excise reported in 1990 (47) E.L.T. 157 where it was held that the Tribunal has no inherent power to review its own order.;


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