ORDER
V.K. Agrawal, Member (T)
1. This is an Application by Madura Coats Ltd. for rectification of mistake in Final Order No. A-536/Kol/2002, dated 17-4-2002 [2002 (144) E.L.T. 321 (T)].
2. Shri V. Sridharan, learned Advocate, submitted that the Tribunal vide Final Order No. A-536/Kol/2002, dated 17-2-2002 has classified the woven grey tyre cord fabrics manufactured under Heading No. 59.09 of the Schedule to the Central Excise Tariff Act instead of Heading 59.02 as claimed by them; that even if it is assumed that the yarn supplied to the appellants was not high tenacity yarn, still the grey tyre cord fabrics manufactured by them would not be classifiable under Heading 59.09 in view of Explanatory Notes of H.S.N., Board’s Circular dated 10-8-1988 and in view of the fact that Heading 59.09 relates to textile products and articles; that as per HSN Explanatory Notes, woven tyre cord fabric not made from high tenacity yarn would be covered by Heading 54.08; that the Tribunal had not taken into consideration this ground duly argued by them while passing the final order; that as per Board’s Circular No. 22/Cotton/88, dated 10-8-1988, tyre cord fabrics made of cotton would not fall under Heading 59.09 but would be covered by Heading 52.05; that the said Circular is favourable to them and was in force during the entire relevant period and the Department is bound by the Circular; that though the Tribunal had noted this point, the Tribunal had failed to take into consideration this ground while passing the Order. The learned Advocate also submitted that their contention that Heading 59.09 is ex facie inapplicable as the impugned product, cleared in running length of 200 to 500 metres, cannot be classified as textile articles; that the Tribunal has failed to note and take into consideration this point also; that the decision in Jyoti Overseas Ltd. – 2001 (130) E.L.T. 446 (Tri.-LB) = 2001 (44) RLT 37 (Tri.-LB) which was relied upon by them has not been considered by the Tribunal; that failure to deal with such vital grounds is an error apparent from the record. The learned Counsel further mentioned that the Tribunal has not considered their submissions that the test report of sample can apply only to future clearances and cannot be applied to past clearances and as such it is also an error apparent from the record. The learned Advocate relied upon the decision in the case of Laxmi Electronic Corporation Ltd. v. CIT, 1991 (188) ITR 398 (All.) wherein it has been held that it is a well-settled proposition that an act of Court should not prejudice a party. It must be left to the Tribunal to reopen the appeal if it finds that it has omitted to deal with an important ground urged by the party. Where the Tribunal fails or omits to deal with an important contention affecting the maintainability/merits of the appeal, it must be deemed to be a mistake apparent from the record which empowers the Tribunal to reopen the appeal and rectify the same if it is so satisfied. Reliance has also been placed on the following decisions :
(i) C.I.T. v. Income Tax Appellate Tribunal 1998 (172) ITR 158 (MP) (ii) Income Tax Officer v. Income Tax Appellate Tribunal, 1965 (58) ITR 634 (All.) 3. Learned Advocate also mentioned that the answer to the question as to whether non-consideration of one of the submissions made by the appellants amounts to an error apparent on the face of record would depend upon the nature of the pleas raised by them as observed by the Tribunal in the case of TELCO v. C.C.E., Jamshedpur, Order Nos. M-1006-1008-Kol/2001, dated 8-10-2001 - 2002 (149) E.L.T. 460 (T). He contended that as the pleas raised by them were independent and alternative to each other, non-consideration would amount to an error apparent on the face of the record; that the submissions made by them which have not been considered by the Tribunal affect the core of the matter.
4. Opposing the prayer Shri N.C. Roychowdhary, learned Senior Advocate for Revenue, submitted that if two views are possible in any matter and the Court gives one view this would not amount to error on the face of the record; that it has been held by the Larger Bench of the Tribunal in the case of Dinkar Khindria v. C.C., New Delhi – 2000 (118) E.L.T. 77 (T) that powers of rectification of mistake were limited power and this power is restricted to rectification of the mistake apparent from the record calling for amendment of the order. “The mistake apparent on the record must be 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….. A decision on a debatable point of law or facts is not a mistake apparent from the record and the debatable issue could not be subject of an order of rectification. Rectification of mistake does not envisage the rectification of an alleged error of judgment.” Reliance has also been placed on the decision in the case of Lily Thomas v. Union of India, AIR 2000 S.C. 1650 wherein the Apex Court has held that error must be such which, is apparent on the face of the record and not an error which is to be finished out and searched. It has further been held by the Supreme Court that “error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law…. such error is an error which is a patent error and not mere a wrong decision.” Reliance has also been placed on the decision in the case of Satyanarayan Laxminarayan Hedge v. Mallikarjun Bhavanappa Tirumale, AIR 1960 S.C. 137 wherein it has been held by the Supreme Court that “where an alleged error is far from self-evident and if it can be established, it has to be established by lengthy and complicated argument such error cannot be cured by a writ of certiorary.” In reply, learned Advocate for the appellants mentioned that the judgment of the Supreme Court is in respect of error apparent on the face of the record whereas in the case of taxation matters the issue relates to a mistake from the record and if a mistake is apparent from the record the order needs to be recalled. He relied upon the decision of the Allahabad High Court in the case of Laxmi Electronic Corporation Ltd. v. CIT, supra.
5. We have considered the submissions of both the sides. Section 35C(2) of the Central Excise Act provides for rectifying any mistake apparent from the record. Final Order which is the subject-matter of present Application for rectification of mistake was passed after considering all the submissions made by the applicants. All the points raised by the applicants have been duly considered and thereafter the Final Order was passed. It is well settled law that the power of rectification is confined to the mistakes apparent from the record that is a mistake must be obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be two opinions. The rectification of mistake does not envisage rectification of an alleged error of judgment. What is submitted by the applicant in the present application is that the final decision, reached by the Tribunal was wrong. The arguments advanced by the applicants at the time of hearing the Appeal have not found favour with the Tribunal as it has decided that the impugned product manufactured by them is classifiable under Heading 59.09 of the Schedule to the Central Excise Tariff Act. It has been held by the Supreme Court in the case of Vasudeo Vishwanath Saraf v. New Education Institute, AIR 1986 S.C. 2105 that it is not necessary that order must be a lengthy one recording in detail all the reasons that played in the mind of the Court in coming to the decision. “What is imperative is that the order must in a nutshell record the relevant reason which were taken into consideration by the Court in coming to its final conclusions and disposing of the petition.” It is settled law that rectification of mistake is by no means an appeal in disguise whereby the order even if it is not valid is re-heard and re-decided. In view of this we do not find any mistake in the Order No. A/536/Kol/2002, dated 17-4-2002. The ROM Application is thus rejected.