Anil R. Dave, J. - (1.) Being aggrieved by the Order dated 23rd November, 2009, passed in Appeal No. E/2032/06-Mum. by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), West Zonal Bench at Mumbai, this appeal has been filed by the Revenue - Commissioner of Central Excise, Belapur, Mumbai.
(2.) By virtue of the impugned order, the CESTAT has rectified its Order dated 4th November, 2008 passed in Appeal No. E-2032-2033/06 in pursuance of an application for rectification filed by the present Respondent Assessee under Section 35C(2) of the Central Excise Act, 1944 (hereinafter referred to as the Act). It is the case of the Appellant that the a foretasted final order dated 4th November, 2008 passed by the CESTAT has been rectified in pursuance of the application filed by the Respondent herein. The case of the Appellant, in this appeal, is that under the garb of rectification, the CESTAT has modified its order dated 4th November, 2008 in such a way as if the Respondent asessee had filed an appeal against the said order and the CESTAT has virtually allowed the appeal against its own order.
(3.) Mr. B. Bhattacharya, learned Additional Solicitor General, appearing for the Revenue submitted that the CESTAT has limited power to rectify its mistake under the provision of Section 35C(2) of the Act. The relevant portion of the said section reads as under: 35C(2) - The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal.... The learned Counsel submitted that as per the language of the foretasted Sub-section, it is clear that the Appellate Tribunal, i.e. the CESTAT has power to rectify any mistake which is apparent from the record of any order passed by it under Section 35C(1) of the Act. The learned Counsel submitted that the CESTAT had passed final order dated 4th November, 2008 in an appeal filed before it by the Respondent. By virtue of the final order passed in the said appeal filed by the Respondent, the CESTAT had upheld the demand of duty of Rs. 90,89,480.56 together with interest and equivalent penalty of Rs. 90,89,480.56 but the order imposing penalty of Rs. 25,00,000/- had been set aside. Moreover, the penalty imposed upon Shri Sanjay Bahadur had been reduced to Rs. 1,00,000/-. ;