M.V. Ravindran, Member (J)
1. This application for rectification of mistake filed by the applicant for rectifying the mistake in the Tribunal’s order dated 02/02/2005 and miscellaneous order dated 11/11/2005. Considered the submissions made at length by both sides and perused records. The applicant’s application for rectification of mistake is against the order of the Tribunal on the ground that the Tribunal has not considered the settled law on the issue by the Hon’ble Supreme Court. I find that identical argument was taken by the applicant counsel in the earlier application of rectification of mistake. This Tribunal in its order dated 11/11/2005 at paragraph ‘4’ has held as under:
The issue on which rectification is sought was not taken up at the time of hearing of appeal by the learned advocate, Shri Vipul Raheja, who appeared during hearing of appeal. He dropped this ground and only contested the appeal on imposition of penalty under Section 11AC. The Final Order No. A/164-165/2005 dated 02/02/2005 was dictated in the open court. The goods described as marble slabs are marble tiles, which are excisable.
2. I find that the Tribunal in its final order dated 02/02/2005 had come to the conclusion and judgment, based upon the arguments made before it by both sides and more specifically, the argument which has been conceded by the advocate of the applicant.
3. Hon’ble Supreme Court in the case of Commissioner of Central Excise v. A.S.C.U. Ltd. as reported as has held as under:
Rectification of mistake – Mistake apparent on the face of the record must be an obvious and patent mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible – Decision on debatable point of law also cannot be treated as “mistake apparent from the record”.
Rectification of mistake – More than one material relied upon by the Tribunal out of which some material may be irrelevant or which could not have been used and without such irrelevant material Tribunal may have given the same decision – Test reports not relevant to assessee’s product relied by Tribunal besides other material including assessee’s literature –
HELD: No mistake apparent from record in Tribunal’s order as it could be based on the other material which was relevant, however, if decision is based only on material which is irrelevant or which could not have been used then possibly there could be a mistake apparent from records – Tribunal’s order recalling its order set aside – Section 35C(2) of Central Excise Act, 1944.
4. Accordingly, I do not find any merit in the application for rectification of mistake filed by the applicant, the same is liable to be dismissed.
(Dictated and pronounced in the open court)