M/S. Aarti Steels Ltd. Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:
1. this is an application styled as one for rectification of mistake of the final order passed by a bench of three members on 9-6-2001.according to the petitioner, certain points were not dealt with while passing the final order. more specifically it is averred that grounds (c), (d) and (e) raised in the memorandum of appeal were not specifically dealt with.2. all the points, which were raised before the bench, were considered and dealt with while disposing of the appeals. counsel, who appeared at the time of final hearing, has not moved this application for rectification of mistake. another counsel has now been engaged by the assessee to move this application. that advocate was not in a position to state that grounds (c), (d) and (e) urged in the memorandum appeal were, in fact, pressed before the tribunal. by change of counsel, assessee cannot be allowed to raise a contention that points, which were not urged before the tribunal, were, in fact, urged and the tribunal failed to consider the same.3. this application is one filed invoking the provisions contained in section 35c(2) of the central act, 1944. that section contemplates an application for rectification of a mistake apparent on the face of the record. we see no mistake in the order, which will satisfy the requirement of section 35c(2), namely, mistake apparent from the record.4. in view of what has been stated above, we find no merit in this application filed under section 35c(2) of the act. it is accordingly dismissed.

Judgment:
1. This is an application styled as one for rectification of mistake of the final order passed by a Bench of three Members on 9-6-2001.

According to the petitioner, certain points were not dealt with while passing the final order. More specifically it is averred that grounds (C), (D) and (E) raised in the memorandum of appeal were not specifically dealt with.

2. All the points, which were raised before the Bench, were considered and dealt with while disposing of the appeals. Counsel, who appeared at the time of final hearing, has not moved this application for rectification of mistake. Another counsel has now been engaged by the assessee to move this application. That Advocate was not in a position to state that grounds (C), (D) and (E) urged in the memorandum appeal were, in fact, pressed before the Tribunal. By change of counsel, assessee cannot be allowed to raise a contention that points, which were not urged before the Tribunal, were, in fact, urged and the Tribunal failed to consider the same.

3. This application is one filed invoking the provisions contained in Section 35C(2) of the Central Act, 1944. That Section contemplates an application for rectification of a mistake apparent on the face of the record. We see no mistake in the order, which will satisfy the requirement of Section 35C(2), namely, mistake apparent from the record.

4. In view of what has been stated above, we find no merit in this application filed under Section 35C(2) of the Act. It is accordingly dismissed.