Judgment:
1. This is an application for rectification of mistake. In the Petition, the appellants have pleaded that an amount of Rs. 31,945.28 was short-levied on RT-12 belonging to another licensee and not to the appellant and that during the course of the hearing, it was maintained that the action of the Superintendent of Central Excise, Dhampur could not be held to be legal in view of the judgment of the Hon'ble High Court of Patna in Civil Writ jurisdiction case No. 6/0/1970 : Cen-Cus May 1974, Page 1--Rohtas Industries Ltd, v. Superintendent of Central Excise and it was not the prayer of the appellants to remand the case back to the lower authority and further, they have contended that the Show Cause Notice which would now be issued will be beyond the time limit prescribed for recovery of short-levy. Further, that no order has been passed for crediting back the amount of Rs. 31,945.28 which has been unauthorisedly recovered from the appellants by the Supdt. of Central Excise. Therefore, the prayer was that the order for remand be rescinded and the appeal be allowed with consequential relief to the appellant.
2. During the course of his arguments, Shri J.S. Shanna, Manager, Dhampur Sugar Mills referred to Page 4 of the order of this Tribunal and stated that no order has been passed against the action of the Supdt. of Central Excise and that the Tribunal has not passed any order with reference to the citation referred to by them in Union of India and Ors. v. Madhumilan Syntex Pvt. Ltd. 1988 (17) ECR 1 (S.C.) wherein the Supreme Court had set aside the demand for short-levy of duty as bad in law as no Show Cause Notice was issued prior to the demand notice and as such, the Tribunal ought to have followed the same ratio and in spite of the Supreme Court's judgment having been cited in the grounds of appeal, the Tribunal has not passed any order with reference to that decision.
3. In his rejoinder, the learned SDR Shri G. Bhushan, however, stated that there was no mistake in the order of the Tribunal and the Tribunal's order was clear and the Show Cause Notice to be now issued will also not be time barred, as demands have been made in the RT-12 assessments.
4. In reply, Shri J.S. Sharma further cited the decision of the Tribunal in Indian Airlines v. Collector of Cus., New Delhi 1989 (23) ECR 544 where the Tribunal has held "orders passed only on one out of the two issues involved, is error apparent on the face of record, hence rectifiable". On this ratio, Shri J.S. Sharma argued that the prayer of the appellant to set aside the action of the Superintendent in recovering the amount was not taken into account by the Tribunal and hence, the order should be rectified.
5. The grounds put-forth in the application for rectification have been seen and also the submissions made. In the order of the Tribunal No, A/69/1990-NRB dated 26.2.1990, full facts of the case have been considered and mainly, during the personal hearing, Shri J.S. Sharma emphasised that the department had not issued any Show Cause Notice for the recovery of the amount of Rs. 31,945.28 which pertain to another unit, and hence, the principles of natural justice were not followed.
The learned SDR also conceded that no Show Cause Notice was issued and proposed that the matter should be remanded for de novo consideration.
In pare 6 of the order, the Bench has referred to the letter of the Assistant Collector dated 25,5.1989 which is found to be the demands railed during the course of assessment of the RT-12 Returns and that these demands were confirmed and it may, therefore, be taken that a demand for the amount has been raised during assessment of RT-12 Returns, but, however, it was viewed that the Show Cause Notice should be issued in order to give the appellants an opportunity to put-forth their defence. Since the plea was for denial of principles of natural justice, the Tribunal was correct in remanding the case back to the Assistant Collector for de novo consideration and there will be no question of time limit as demands have already been raised. The citation of the Supreme Court in Madhumilan Syntex Pvt. Ltd. case is with reference to setting aside the demand because Show Cause Notice was not issued. In the Tribunal's order, the matter has been remanded because natural justice was not followed and further, the citation in 1989 (20) ECR 544-Indian Airlines v. Collector of Customs, New Delhi, the ratio is only that out of the two issues, only one issue has been considered, there is an apparent error. The ratio is not applicable here as all the issues raised have been considered. There is no mistake in the order of the Tribunal. It is seen that in the Tribunal's order cited in 1990 (47) ELT 157 : 1990 (28) ECR 483 (Cegat SB-B2) - Pradyumna Steel Ltd. v. Collector of Centre Excise, the Tribunal has referred to the Supreme Court decision in the case of T.S. Balaram v.Volkaft Bros reported in AIR 1971 SC 2004 wherein it is held "a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions, Consequently, therefore, there being no mistake apparent in the order of the Tribunal, the request for rectification is rejected.