ORDER
P.G. Chacko, Member (J)
1. In this application, the applicants submit that there is an apparent error on the face of Final order No. A 964/2002-NB(SM), dated 9-8-2002. The final order ibid does not reflect consideration of the submissions made by the appellants’ Counsel before the Bench at the hearing stage on 25-7-2002. It is stated that the Counsel had advanced certain arguments and cited certain decisions in support of the case on merits and that a synopsis of such arguments/citations had also been placed on record on 25-7-2002. It is further submitted that there is no indication of any such arguments/citations having been examined by the Bench. The operative part of the final order has also been extracted in this application, which is as under:
“After hearing the rival submissions, perusal of the records and the case laws cited by the appellants, I do not find any merits in the appeal and as such the same is dismissed.”
2. The learned Counsel for the applicants submits that the above order of the Bench does not disclose as to whether the submissions and arguments put forward on 25-7-2002 by the Counsel were examined. According to the learned Counsel, this is an error apparent from the record of the case and the same requires to be rectified. The learned Counsel, in this connection, has relied on the decision of the Supreme Court in Madhukar v. Sangram (AIR 2001 SC 2171). The learned Counsel also relies on the decision of this Tribunal (Two Member Bench) in West Coast Industrial Gases v. CCE [1998 (104) E.L.T. 478].
3. The learned DR submits that the operative part of the final order indicates that the view contained in that part of the order was taken by the Bench after due consideration of the submissions of both the sides. Therefore, according to the learned DR, there is no apparent error on the face of the record in this case. The learned DR however has no counter case law to be cited.
4. Having examined the submissions and perused the final order, I note that it does not disclose any examination, by the Bench, of the specific submissions of the appellants as contained in the appeal memorandum qr the case law cited by the Counsel at the hearing stage. The Counsel’s arguments and citations of case laws were, in fact, made in the synopsis which was placed on record on 25-7-2002. None of those arguments or citations appears to have been examined in the order. In such a situation, it appears, the Tribunal’s decision in West Coast Industrial Gases (supra) should apply. That decision on a similar ROM application is to the effect that non-consideration of judicial precedent cited before the Tribunal will constitute an apparent error if the final order of the Tribunal does not disclose consideration of such judicial precedent. On a perusal of the aforesaid synopsis, I find that the case law cited therein was not examined by the Bench. Hence this is a case of non-consideration of case law cited by the learned Counsel and therefore the ratio of the decision in West Coast Industrial Gases will squarely apply. The Supreme Court decision cited by the learned Counsel today has also been perused. That decision, which was rendered in an appeal under the Civil Procedure Code, does not appear to be apposite to the instant situation. In the result, I allow this application, recall the final order dated 9-8-2002 and post the appeal for re-hearing on 10-1-2003. It is made clear that it will not be open to the parties to this appeal, to rely on any fresh material in this appeal.