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Shri Laxmi Textile Mills Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1987)(29)ELT723TriDel
AppellantShri Laxmi Textile Mills
RespondentCollector of Central Excise
Excerpt:
.....in the case of pira mal spinning & weaving mills ltd, v. union of india (1982 elt 145).3. we heard shri s. kachwaha, advocate, for the applicants and shri k.d. tayal, senior departmental representative, for the respondent collector.4. when the application was taken up, it was pointed out to shri kachwaha that the bench as constituted on 2-3-1985 is different from the bench that heard and disposed of the appeal on 6-7-1984. but shri kachwaha submitted that the submissions he proposed to make would not relate to what had transpired at the hearing of the appeal but as to what had been omitted to be stated in the said hearing and, therefore, the present bench itself may hear the application. accordingly, we have heard him.5. the application has been filed under section 35c(2) of the.....
Judgment:
1. This application is by the appellants, M/s Shree Laxmi Textile Mills. The application is made under Section 35C(2) of the Central Excises and Salt Act, the prayer being for amendment of the order dated 6-7-1984, passed in the appeal filed by them.

2. It is mentioned that in view of the Bombay Collectorate Trade Notice No. 261/77 dated 29-12-1977 duty should have been ordered to be paid (9 Re. I/- per kg. only and not at Rs. 16/- per kg. It is further stated that the quantity manufactured and cleared was 6,179.700 kgs. only during the relevant period and not 9,838.460 kgs. and, therefore, the amount of duty payable should have been calculated on this figure of 6,179.700 kgs. only. By way of additional grounds it has been further submitted that the issue to be decided in the appeal was covered by a decision of the Bombay High Court in the case of Pira Mal Spinning & Weaving Mills Ltd, v. Union of India (1982 ELT 145).

3. We heard Shri S. Kachwaha, Advocate, for the applicants and Shri K.D. Tayal, Senior Departmental Representative, for the respondent Collector.

4. When the application was taken up, it was pointed out to Shri Kachwaha that the Bench as constituted on 2-3-1985 is different from the Bench that heard and disposed of the appeal on 6-7-1984. But Shri Kachwaha submitted that the submissions he proposed to make would not relate to what had transpired at the hearing of the appeal but as to what had been omitted to be stated in the said hearing and, therefore, the present Bench itself may hear the application. Accordingly, we have heard him.

5. The application has been filed under Section 35C(2) of the Central Excises and Salt Act. The same reads as follows : "The Appellate Tribunal may, at any time within four years 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 Collector 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 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 opportunity of being heard." his provision has been construed in two orders of this Tribunal reported in Entremonde Polycpaters Pvt. Ltd, v. Collector of Central Excise, Pune,Metal Extruders (I) Pvt. Ltd, v.Collector of Central Excise, 1985 (19) ELT 198. These judgments had considered the various judgments of the High Courts and Supreme Court arising under Section 35 of the Income-tax Act, 1922, the provisions of which were exactly similar to the provisions in Section 35C(2) of the Central Excises and Salt Act. In these judgments the Courts had drawn a clear distinction between powers of review or revision and powers of rectification as contained in the provisions cited supra.

6. Under Section 35C(2) the errors to be rectified should have arisen from any mistake apparent from the record. In construing the above words it had been held in the above cited two decisions of this Tribunal, following the decisions of the High Courts and the Supreme Court, that the error must be something very obvious and manifest and that a mistake, to establish which a very elaborate process of reasoning is called for, cannot be said to be a mistake apparent from the record. Two more decisions to which also reference may be made in this connection, apart from those cited in the earlier orders of this Tribunal mentioned earlier, would be Commissioner of Income-tax, Kerala v. J. Sundaram - (1964) 52 ITR 474 and Income Tax Officer v. Income-tax Appellate Tribunal - (1965) 58 ITR 634. It had been held in these decisions that mistakes, the discovery of which would require process of investigation and argument, are outside the scope of Section 35 of the Indian Income-tax Act, 1922.

7. In the present instance the applicants have put-forward three different grounds for claiming the relief of rectification. Shri Kachwaha at the time of hearing submitted that he would not press Ground No. 2. That ground related to the quantity of clearances being 6,179.700 kgs. only and not 9,838.460 kgs. Shri Kachwaha rightly did not want to press this ground as this error cannot be said one apparent from the record but would require investigation and proof.

8. Even so far as the other two grounds are concerned (one based on a Trade Notice and the other based on a judgment of the Bombay High Court), Shri Kachwaha admitted that neither of these grounds had been urged for the applicants at the time the appeal was heard, since, according to him, the appellants themselves were not aware of the trade notice or the judgment of the Bombay High Court when the appeal was heard. Therefore, this error, if an error at all, could not be said to be one apparent from the record, since we will have to travel outside the record and search amongst records of other parties to discover these new facts, on the basis of which relief is now claimed. Not merely that, the applicability of the Trade Notice would itself be debatable since the Trade Notice refers to fancy yarn made of cotton yarn to which continuous filament viscose yarn is over-lapped to produce a continuous filament viscose. On the other hand, the filament yarn manufactured by the applicants was nylon filament yarn. Further, even as far as the Bombay High Court judgment is concerned, this Tribunal had in other cases considered the said judgment vis-a-vis judgments of other High Courts to the contrary/Therefore, both the grounds urged by Shri Kachwaha would be debatable grounds and, in any event, they cannot be said to be anything apparent from the record in order to attract the provisions of Section 35C(2) of the Central Excises and Salt Act.

9. In this connection, the following passage in Chatturvedi and Pithiseria's Income-tax Law (3rd Edition) at page 3145 would also be instructive : "The error sought to be rectified through an application should not be as a result of any fault of the applying party in the conduct of the appeal proceedings but should be one attributable entirely to the Tribunal having lost sight of a material fact at the time of writing its order or judgment, which fact was duly brought to its notice by the applying party." In the present case it had been already seen that the two grounds on which Shri Kachwaha now relies to make out a case for rectification had not even been urged at the time the appeal was heard. Therefore, on that very ground itself the applicability of Section 35C(2) is to be ruled out.

10. For all the above reasons we hold that the present application deserves dismissal. It is accordingly dismissed.

11. No Bench can hear an application that says that an order passed by another bench needs an amendment. In application dated 22-8-1984, M/s Shree Textile Mills refers to order No. '387/84, dated 6-7-1984 and prays for amendment of that order. Therefore, notwithstanding what the advocate said on 2-5-1985, this application is very much an application for amendment of the order passed on 6-7-1984.

12. The reasons for saying that this Bench could hear this application was given as being that what would be said would be what was omitted at the hearing that led to the order of 6-7-1984. Then what is the status of this application? If one agrees with it, will the bench pass an independent order? If so, is it an appeal and what was the order appealed against? If this application arises from circumstances that led to the order of 6-7-84, how can it be not an application that relates to and that affects that order? And if this application is allowed, will it change the first order or not? 13. The reason advanced is a most extraordinary one - that something was omitted to be stated at the hearing. Is a party to be heard again, to submit more arguments, after the order has been passed? Then everybody will discover things he forgot to say, and will demand to be heard again; and orders passed will be redrafted, repassed and reissued. Or, as is made out here that this application does not relate to the order clearly passed, a new order will be passed more favourable to the applicant or the otherside, and never mind if it acts contrary to the order already passed.

14. I am not able to see the logic of the argument. The application was made under Section 35C(2) of the Central Excises and Salt Act, 1944. To pass an order on this application, is to pass an order that modifies/ enlarges/subtracts from the order of 6-7-1984. Even to reject it, is to imply that the bench can accept it, if it so thought fit.

15. I repeat that no bench can hear such an application to modify an order passed by another bench, not even to reject it, when that bench can still assemble and meet. I raised this at the beginning of the hearing.


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