ORDER
1. When this application was heard it appeared that the issue being small, the appeal itself could be taken up for disposal. This was so done.
2. The appellant were operating under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 2000. Initially the capacity was determined on the basis of 5.36 chambers. The request for redetermination was turned down by the Commissioner. The request was on account of permanent shut down of two chambers subsequent to the determination of the capacity. That order was challenged before the Tribunal. However, pursuant to the said order the monthly liability on the assessee were determined by the Dy. Commissioner vide his order dated 17/03/2001. This order covers the period for the year 2000-2001. Another order, was passed by the same Dy. Commissioner on the same ground for the period 16/12/1998 to 28/02/2000. Against these two orders-in-original the assessee filed appeals before the Commissioner (Appeals). The Commissioner (Appeals) allowed both the appeals holding as under:
“2. The quintessence of the issue is that the Appellants have been operating with the aid of three chambers in their Hot Air Stenter since two of the Chambers wee evidently destroyed in the fire before the introduction of Notification No. 36/98 and 43/98 C E (NT) both dated 10.12.98. The proper officer has determined the annual capacity of the production taking into consideration five Chambers and aggrieved by this, the Appellants had filed an Appeal in the Hon’ble CEGAT.
“3. I find that the impugned order was passed in ignorance of the vital issue. It is also on record that the Range Supdt. has reported the functional aspect of the three existing Chambers only. In the circumstances, it would be against interest of justice if the demand is enforced without the Tribunal’s decision in the Appeal filed by the Appellants.”
3. This order was dated 27/07/2001 and was received by the appellant by post on 01/08/2001. However, on 10/08/2001 the Commissioner (Appeals) issued another order which reads as follows:
“The Order-in-Appeal No. ZBN/39/M-VII/2001 issued on 27.07.2001 is hereby rescinded from the date of issue, i.e., 27.07.2001 as it was issued inadvertently. The said Order, therefore, ceases to be operative/in existence right from 27.07.2001.
“The Appellants are, therefore, hereby informed that the undersigned will be hearing them personally on Friday, the 17th August, 2001 @ 11.30 hrs. in connection with both the aforesaid Appeals.
“The Appellants and/or their Advocates are requested to take note and attend the hearing on the appointed date and time.”
Against this order the present appeal has been filed.
4. The appellant’s claim is that once the appellate authority had passed an order it had no authority to make any changes in that order unless the changes were of clerical or arithmetical nature.
5. In the case reported in 1996 (85) ELT 313 the orders of the Assistant Collector was examined by the Tribunal. After issue of his orders on classification, vide a corrigendum the Assistant Collector had reclassified the confiscated goods and had issued orders. The Collector (Appeals) held hear second order has no validity. In approving the Collector (Appeals) action the Tribunal held as follows:
“14. The Collector (Appeals) is right in stating that once the A.C. has approved the classification finally, he could not have modified the same and it could only be reviewed/revised or modified by the higher competent authority. A corrigendum can of course be issued but only to correct clerical or typographical error(s) or other error apparent on the face of the record; but a substantive change in decision could only be made in accordance with law.”
6. By the applying the ratio of the judgment I find that he impugned order is wrong in law.
7. Shri B.B. Sarkar arguing for the department has two submissions. He submits that the case file could be called for to see whether the Commissioner (Appeals) had in fact signed the earlier order dated 27/07/2001 or whether it was inadvertently issued by the Superintendent (Appeals) on attestation without the Commissioner (Appeals) having signed the same. On perusal of the wordings of the corrigendum as reproduced above it does not appear to be the case. The second argument is on merits challenging the initial order. I find that the orders having been issued only on 27/07/2001 the jurisdictional Commissioner has sufficient time to take appropriate action in terms of Section 35B(2) of the Act. Therefore the Revenue’s interest cannot be said to be harmed.
8. In fact in the event the adjudicating authority or an appellate authority find that his orders are not correct in law, it is appropriate for him to advice the jurisdictional authority who is competent to file the appeal before the Tribunal against the order. Rescinding his own order is not permitted under the relevant law.
9. The appeal is allowed. The order dated 10/08/2001 is set aside.