VIVEK VARMA,J. - (1.) This is an assessee's appeal under Section 35-G of the Central Excise Act, 1944 against an order of the Tribunal dated 09.04.2018. The substantial questions of law sought to be answered are quoted hereunder:- (i) Whether the Hon'ble Tribunal is justified in rejecting the Misc. Application filed on 22.01.2018 without deciding the same on merits under the facts and circumstances of the case ? (ii) Whether the Hon'ble Tribunal was justified in observing that the Misc. Application filed by the appellant after a lapse of 17 years ignoring the vital fact that the order dated 30.11.2000 passed on the Rectification of Mistake Application was served upon the appellant only on 15.09.2017/16.01.2018 ? (iii) Whether the Hon'ble Tribunal was justified in ignoring its own directions given while hearing the Misc. Application vide order dated 09.04.2018, which has been annexed to this Memo of Appeal marked as Annexure No.5 (iv) Whether the Hon'ble Tribunal is justified in observing that no Rectification of Mistake Application can be filed for rectifying the mistake in the order passed on the Rectification of Mistake Application We have heard Sri A.P.Mathur, learned Counsel for the appellant and Sri R.C. Shukla, learned Counsel for the respondent-department.
(2.) By the order under appeal the Tribunal has dismissed the application of the assessee filed for Rectification of Mistake under the provisions of Section 35C(2) of the Central Excise Act taking into account the facts of the case that an order was passed against the assessee on 14.03.2000 against which the assessee filed Rectification of Mistake Application under the provisions of Section 35C (2) of the Act pointing out certain alleged mistakes apparent on the face of the record and prayed for rectification of the same, which was disposed of by the Tribunal by Miscellaneous order dated 04.01.2000 rejecting the same saying that there is no mistake in the said order.
(3.) After a period of more than 17 years the appellant filed a second fresh application for rectification of mistake in the order passed on 04.01.2000. The plea taken by the assessee is that the order was received on a certain date. However, the provisions of Section 35C(2) of the Act, which provides for rectification of mistake is very clear. For ready reference Section 35C(2) of the Act is quoted hereunder:- Section 35C(2) in the Central Excise Act, 1944 (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: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportu nity of being heard. ;