ORDER
Lajja Ram, Member (T)
1. M/s. Arora International had filed the present application for rectification of mistake (ROM) under Section 35C(2) of the Central Excises Act, 1944 (hereinafter referred to as the ‘Act’), with reference to the Tribunal’s Order No. 63/2000-D dated 22-2-2000. The ROM application was received in the Registry on 9-8-2000 and was registered as E/ROM/130/2000-D. It has been prayed therein that the Tribunal’s Final Order dated 22-2-2000 be recalled and rectified, and the appeal be reconsidered in the light of the submissions made in their ROM application.
The main argument taken in the ROM application is that due to inadvertence and bona fide mistake, in the Memo of Appeal filed before the Tribunal, the documents, which were selected for filing with the appeal for correlation of manufacture and export during the relevant period, were not filed, and instead the documents, which were eliminated being not relevant to the period in question, got filed (refer para 11 of the ROM application). It was explained that the technical formalities of preparation of the documents and other procedural formalties were inadvertently omitted to be complied with due to lack of knowledge on the part of the applicants (refer para 7 of the ROM application). Observations and inferences of the adjudicating authority were commented upon to make a point that the ld. Collector of Central Excise had passed his order against the appellants due to grave and apparent error (refer para 22 of the ROM application).
2. The ROM application was heard on 6-10-2000 when Shri B.V. Desai, Advocate with Shri Siddhartha Chaudhary, Advocate submitted that the adjudicating authority had not observed that there was no documentary evidence to establish that the goods in respect of which the central excise duty had been demanded, had themselves been exported. He referred to the following observations of the adjudicating authority :-
(1) On verification of the documentary evidence and the chart, it appeared that the claim of the respondent that the very quantity manufactured or got manufactured during the relevant period was physically exported and the export proceeds received appeared to be true.
It was the submission of the ld. Advocate that after making the above observations, conclusion drawn by the adjudicating authority was fallacious when he gave the following findings :-
“However, in the absence of documentary evidence linking production to export it cannot be unequivocally held that the same goods as were manufactured by them, were exported.”
He also found fault with the Tribunal’s Order with regard to the claim for drawback as referred to in para 5 of the said order.
In reply, Smt. Rashida Hussain, SDR submitted that in the ROM application, the applicants have sought to make a new case and that there was no apparent mistake in the order of the Tribunal. The findings of the Commissioner of Central Excise, who had adjudicated the matter, were categorical that the goods manufactured had not actually been exported and that what had been shown to have been exported had no correlation with the goods, which are the subject-matter of the present proceedings. She also submitted that the appellants had filed papers in which there was a reference to the drawback.
3. We have carefully considered the matter. The appellants had filed an appeal against the Order-in-Original dated 8-3-1994 passed by the Collector of Central Excise, Bombay. The appeal was received in the Registry of the Tribunal at Bombay on 9-6-1994. In their communication dated 31-3-1999, the appellants prayed for decision on the basis of facts furnished in the statement of facts and the defence points in the Grounds of Appeal. The matter was fixed for hearing on 17-12-1999 and a detailed order was passed on 22-2-2000.
4. A perusal of the ROM application shows that the appellants have admitted the fact that they had not followed the prescribed procedure for export. Paras 7,10 and 23 of the ROM application are extracted below:-
“7. The case of the applicant is that the said goods were manufactured for and were actually exported and were therefore exempt from payment of excise and that the technical formalities of preparation of documents and other procedural formalities were inadvertently omitted to be complied with due to lack of knowledge.
10. The appellants say and submit that after procurement of central excise licence they affected the clearances for export under the wrong interpretation and without following the correct procedure visualised under Rules 12,13 & 14 of the Central Excise Rules, 1944. Subsequently, on realising the said lapse they have tried their level best to meet with all the requirements and submitted necessary classification list procured B-l Bond and followed all other formalities for subsequent clearances.
23. The case, at worse, against the applicants was that they were unaware of the teclvnical formalities of clearances of such goods for export from the factory and had inadvertently omitted to follow the procedure prescribed for clearances of the goods for export but the fact is that the goods which had been exported were not in dispute and were even established.”
5. They have sought to make-out a new case that on the ground that the relevant documents could not be annexed with their Appeal Memo. In para 11 of the ROM application, they have argued as under:-
“11. It is submitted that the applicants feel and would be able to establish that the records and the observations made by the authorities below have remained to be appreciated and the respondents representative have not able to take the Hon’ble Tribunal through the record carefully. This request to the ld. Tribunal by the applicants for deciding the case on merits has not helped the ld. Tribunal to be able to correlate the case of the applicants with the records of the case. It is submitted that certain documents as were submitted to the Collector’s office with respect to the relevant period which have been considered and examined by the Collector and he has given finding on such documents in favour of the applicant as set out hereinafter had remained to be filed along with the appeal and are now being filed herewith for convenience. In fact due to inadvertence and bona fide mistake in the application of the applicant at the time of filing of the appeal the document which was selected for filing with the appeal for correlation of manufacture and export during the relevant period were not filed and instead the documents which were elimi- nated being not relevant to the period in question got filed. This has resulted in the apparent error in the observations in the judgment that the document relating to export do not indicate that the goods exported were good manufactured.”
6. In para 20 of the ROM application, the applicants have stated that the observations of the adjudicating authority were “totally contrary and incongruous”. The Tribunal had examined the pleadings of the appellants and had arrived at a considered view. What the appellants in nut shell had now pleaded through the present ROM application is that they had not been able to place their case in right perspective. Such a pleading could not form the basis for recall of the order validly passed after full consideration of the issues involved. Under the plea of rectification, no new order could be passed. In this connection, we may refer to the Tribunal’s decision in the case of Dinkar Khindria v. Collector of Customs, New Delhi – 2000 (118) E.L.T. 77 (Tribunal -Larger Bench), wherein in para 5, the Tribunal had held that the rectification of mistake is by no means an appeal in disguise whereby an order even if it is not valid, is re-heard and re-decided. Para 5 from the Larger Bench decision of the Tribunal is extracted below :-
“5. The power of rectification of mistake under Section 129(B) of the Act is a limited power and this power is restricted to rectification of the mistakes apparent from the record calling for amendment of the order. “Rectification” means “taking out mistakes from”. A mistake apparent on the record must be an 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 (refer Supreme Court’s decision in the case of S. Bnlaram, Income-tax Officer Company Circle IV, Bombay v. Volkart Brothers & Ors. – AIR 1971 (SC) 2204 (SC).
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 the subject of an order of rectification. Rectification of mistake does not envisage the rectification of an alleged error of judgment.
Rectification of mistake is by no means an appeal in disguise whereby an order even if it is not valid, is re-heard and re-decided. Rectification of mistake application lies only for patent mistake. Only in a case where the mistake stares one in the face and there could reasonably be no two opinions entertained about it, a case for rectification of mistake could.be made out. The Hon’ble Supreme Court in para 11 of their judgment in the case of Thungab-hadra Industries Ltd. v. Government of Andhra Pradesh represented by the Dy. Commissioner – AIR 1964 (SC) 1372 had held as under :-
“11. What, however, we are now concerned with is whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an “error apparent on the face of the record”. The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A reveiw is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares on in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. No questions of fact were involved in the decision of the High Court in T.R. Cs 75 to 77 of 1956. The entire controversy turned on the proper interpretation of R. 18 (1) of the Turnover and Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of Feb., 1956; nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the appellant that the order of September, 1959 was vitiated by “error apparent” of the kind envisaged by O.XLVII, R.I, Civil Procedure Code when it stated that “no substantial question of law arose” appears to us to be clearly well founded. Indeed, ld. Counsel for the respondent did not seek to argue that the earlier order of September, 1959 was not vitiated by such error.”
Thus, .Section 129B(2) of the Act does not envisage the rectification of an alleged error of judgment.
7. On careful consideration of all the submissions made by the applicants in the ROM application, we find that there is no mistake apparent from the record, which called for rectification under Section 35C(2) of the Act in the order dated 22-2-2000 passed by the Tribunal.
8. There is no merit in the ROM application and the same is dismissed. Ordered accordingly.