Sidwal Refrigeration Industries Vs. Cce

1. This is an application filed by M/s. Sidwal Refrigeration Industries (P) Ltd. for rectification of mistake in the Final Order No. 329/02 B dated 1.8.2002 passed by the Appellate Tribunal, 2. Shri Ascharaj Lal, learned Consultant, submitted that the Superintendent of Central Excise under letter dated 12.10.2001 illegally demanded duty amounting to Rs. 48,26,241; that the appeal filed by them has been rejected by the Commissioner (Appeals) on the ground that the appeal was filed against a communication which is not valid appealable order under Section 35 of the Central Excise Act; that the Appellate Tribunal also vide Final Order No. 329/02-B dated 1.8.2002 rejected the appeal holding that the communication sent by the Superintendent was neither an order nor a decision and any demand of duty is to be preceded by issue of a show cause notice which the communication was not; that in the case of Shree Baidyanath Ayurved Bhawan v. CCE, Patna, 2001 (129) ELT 780 (T), the communication sent by the Superintendent demanding the duty was not sustained as it was not outcome of an order of the adjudication preceded by issue of show cause notice; that on this short ground the order was set aside; that the said decision is on the identical facts; that subsequently in the case of Hyderabad Industries Ltd. v. CCE, Delhi, 2002 (51) RLT 283 (T) another decision was given on identical fact on the same lines. The learned Consultant, thus, contended that in the light of these decisions the position of law is settled that the communication sent by the Superintendent demanding duty without issue of show cause notice is an appealable order and it must be set aside; that the Final Order passed by the Tribunal has completely disregarded this well settled decision of law; that as such this is clearly an error apparent on the face of the record which must be rectified. He also relied upon the decision in the case of CCE, Calcutta v. Pradyumna Steel Limited, 1996 (82) ELT 441 (SC) wherein it has been decided that there is an error if the Tribunal ignores the settled decision of law. He also mentioned that the law is well settled that the Courts of co-ordinate jurisdiction should have consistent opinions in respect of identical sets of facts or on question of law while exercising the same jurisdiction; that the rectification of error is thus warranted in the interest of certainty and more importantly in the interest of the consistency in the realm of law and for equality before the law.

3. Opposing the prayer, Shri A.S. Bedi, learned SDR, submitted that the applicant in fact is seeking, by the present application, a review of Final Order passed by the Tribunal which is not permissible under the provisions of Section 35C(2) of the Central Excise Act. He relied upon the decision of the Supreme Court in the case of CC, Calcutta v.A.S.C.U. Ltd., 2003 (54) RLT 607 (SC) wherein it has been held that "a mistake apparent on the face of the record must be an obvious and patent mistake." It cannot be something which would have to be established by long drawn process of reasoning on points on which there may conceivably be two opinions. It has been held that the decision on a debatable point of law cannot be a "mistake apparent from the record." Reliance has also been placed on the decision in the case of New Decent Footwear Industries v. CCE, Kanpur, 2001 (134) ELT 543 (T) wherein it has been held that "a mistake must be apparent and not a conclusion right or wrong" and that the Tribunal has no power to review and rehear the whole matter. The reliance has also been made on the decision of the Larger Bench of the Tribunal in the case of Om Prakash Bhatia v. CC, New Delhi, 2001 (76) ECC 778 (LB) : 2001 (131) ELT 305 (T) 4. We have considered the submissions of the both the sides. Section 35C (2) of Central Excise Act provides for rectification of mistake apparent from the records. The Supreme Court recently in the case of CCE, Calcutta v. A.S.C.U. Ltd. has held that the mistake apparent from the records cannot be something which would have to be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. The power of rectification of mistake is a limited power. Rectification of mistake does not envisage the rectification of alleged error of Judgment. The rectification of mistake is by no means an appeal whereby an order which is not valid, is reheard and redecided. It has been held by the Larger Bench of the Tribunal in the case of Dinkar Khindria Dinesh Khindria v. CC, New Delhi, 2000 (38) RLT 442 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 or law." In the present matter, the applicant is trying to say that the decision taken by the Tribunal in rejecting their appeal is wrong. If the applicants are not satisfied with the decision or by an order passed by the Tribunal, the remedy available is to file an appeal in the higher forum. Accordingly, we find no merit in the application which is rejected.