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Metal Extruders (i) Pvt. Ltd. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(19)ELT198TriDel
AppellantMetal Extruders (i) Pvt. Ltd.
RespondentCollector of Central Excise
Excerpt:
.....in the matter of gwalior rayons v. union of india, 1982 e.l.t. p.3. the bench has considered the arguments advanced by both the parties.the power exercised by the tribunal under sub-section (2) of section 35-c of the central excises and salt act, 1944 for rectifying any mistake apparent from the record is narrow in scope. it cannot be said to a power of review so as to reverse an earlier order validly passed.the arguments advanced by shri gangoli, if accepted, would result in totally setting aside the earlier order-when the scope of the power of the tribunal under the provision is restricted and narrow. as for shri gangoli's arguments regarding omission of rule 10 w.e.f. 17-11-80 and proceedings not continuing under the show cause notice issued prior to omission of rule, it is.....
Judgment:
1. M/s. Metal Extruders (I) Pvt. Limited, Bombay have filed an Application under Section 35-C (ii) of the Central Excises and Salt Act, 1944 wherein they have requested the Tribunal to rectify some mistakes apparent from the record namely Order No. 915/83-B dated 30-9-83. Shri A.K. Gangoli, Advocate appearing on behalf of M/s. Metal Extruders (I) Pvt. Ltd. made the following points- (1) In para 4 of the Order referred to above, reference has been made to the appellants having contended that M/s. Alcobex Metals Pvt. Ltd, Jodhpur and M/s. Bhandari Metals Corporation, Bangalore were clearing goods similar to those which were under dispute on payment of nil duty. The Bench has not given its findings on this contention in the order referred to above; (2) In para 4 of the order, reference has been made to Tariff Advice of the C.B.E.C. No. 54/79 dated 27-11-79. The Bench has, however, not given any findings whether the Board Tariff Advice could be retrospective in its effect.

(3) In sub-para 2 of paragraph 6 of the above order, reference has been made to concurrent findings of facts by the lower authorities even though no investigation had been made by these authorities to ascertain whether the facts as indicated were correct; (4) The Show Cause Notices in these cases were issued under Rule 10 of the Central Excise Rules, 1944. Rule 10 was omitted on 17-11-80 i.e. after the issue of the Show Cause Notices. The Bench has not given the findings that the proceedings initiated against the appellants could continue under the rule which had been omitted from the Rules. The Advocate, however, admitted that this was not one of the points which was raised during the arguments at the time of the hearing of the appeal. He, however, wishes to mention this for the information of the Bench.

2. While explaining the above points, the Sr. Departmental Representative stated that there is no error or mistake which is apparent from the record and accordingly the application should be rejected. He cited the case of Tungbhadra Industries Ltd. vs. State of Andhra Pradesh reported in AIR 1974 SC 1372 according to which errors which stare you in the face without elaborate arguments are the only errors which can be considered as apparent from the record thus could be rectified by the Bench under Section 36 of the Central Excises and Salt Act. He added that the question before the Bench was related to only classification of copper wires of 10 mm and less and the Bench has given a clear finding on this in the order and have decided that such goods are appropriately classifiable under Item 68 and not under Section 26A(a). The questions now raised that some other parties were given the benefit of clearance under Item 26A(a) was not made the basis of the order and, therefore, it was an immaterial fact for the decision arrived at. The question of giving retrospective effect to the Board's Tariff Advice referred to by the Advocate was also not relevant or material to the decision given by the Bench. The decision is based on merits namely the ISI specification of wire rods and wires and, therefore, the Board's Tariff Advice was totally irrelevant for the purpose. Regarding the concurrent findings of the fact by the lower authorities, it was not true that the Central Excise authorities had not enquired into the matter. In any case, since they had arrived at certain findings, it has to be presumed that the findings have been arrived at after following proper procedure. With regard to the law point now raised by the Advocate for the Appellants, the Bench has held that the proceedings initiated under Rule 10 would continue the new Section 11-A which is entirely based on Rule 10 which was omitted after initiation of the proceedings. In any case, this point is not relevant at this stage since it had not been raised by the appellants during the arguments at the hearing. The learned SDR stated that this point was not at issue since the Bench has followed the decision of a MP High Court in the matter of Gwalior Rayons v. Union of India, 1982 E.L.T. p.

3. The Bench has considered the arguments advanced by both the parties.

The power exercised by the Tribunal under Sub-section (2) of Section 35-C of the Central Excises and Salt Act, 1944 for rectifying any mistake apparent from the record is narrow in scope. It cannot be said to a power of review so as to reverse an earlier order validly passed.

The arguments advanced by Shri Gangoli, if accepted, would result in totally setting aside the earlier order-when the scope of the power of the Tribunal under the provision is restricted and narrow. As for Shri Gangoli's arguments regarding omission of Rule 10 w.e.f. 17-11-80 and proceedings not continuing under the Show Cause Notice issued prior to omission of rule, it is sufficient to say that this argument was not advanced at the time of hearing of the appeal. Even if Shri Gangoli's contention that this is a legal submission and goes to the root of the matter be acceptable, we do not think that this ground can be raised or accepted while exercising the powers of rectifying any mistake under Sub-section (2) of Section 35C ibid 4. As to other grounds, like concurrent findings of fact by the lower authorities and not dealing with the Tariff Advice referred in paras 1 to 5 of the order, it is sufficient to say that a reading of para 6 of the order shows that decision of the Bench was not based on these contentions. It is also not necessary that a Bench or a Court gives findings of each and every argument advanced by the party unless it considers it necessary to do so. If an argument is advanced and no findings is given on that argument, then the same is taken to have been rejected. These cannot be said to be errors apparent from the record.

In view of the foregoing, we do not see any merit in this application for rectification under the provision and reject the same.


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