ORDER
R.K. Abichandani, J. (President)
1. This petition for rectification of mistake has been filed under Section 35C(2) of the Central Excise Act, 1944 on the ground that though in the first paragraph of the order made on 1-5-2000 in appeal No. E/238/96-NB and E/M/569/99-NB, it was stated that the said miscellaneous application No. E/569/99 dated 22-10-1998 filed by the appellant praying for additional grounds, and additional evidence was allowed after hearing the parties, the grounds raised therein were not at all dealt with while disposing of the appeal under the said order by which the Tribunal sustained the denial of Modvat credit to the tune of Rs. 39,319/- in the ferro silicon and Rs. 11,50,021/- involved in the case of 603.613 MT of ferro manganese and the penalty which was reduced from Rs. 2,50,000/- to Rs. 1,50,000/-. It is stated in this ROM that it was filed within the “then” time limit of four years which was prescribed under Section 35C(2) of the Act.
2. The miscellaneous application No. E/110/2004 has been filed in connection with the said rectification application stating that since the rectification was moved against the final order dated 1-5-2000 when the period of four years was available, in view of the judgment in Shree Warana Sahakari Dudh Utpadak Sangh Ltd. v. CC & CE, Pune reported in 2003 (155) E.L.T. 465 and in Baroda Machinery Manufacturers v. CCE, Bombay reported in 1997 (91) E.L.T. 88, the rectification petition was required to be entertained on merits. In other words, according to the applicants, the rectification application would be governed by the provision as it stood prior to the amendment made from May, 2002 by which, the period of limitation for filing a rectification application was reduced from four years to six months.
3. The additional ground which was raised by miscellaneous application No. E/569/99 was to the effect that Shri S.S. Jha, who had issued the show cause notice dated 4-3-1993 as Collector of Central Excise, was appointed by the President as Collector of Central Excise, Meerut on 2-12-1993 by the Gazette Notification 17/93, dated 2-12-1993 (Sl. No. 14) and, therefore, the show cause notice was issued without jurisdiction. A copy of the notification dated 2-12-1993 which is annexed with the application shows that 46 officers mentioned therein were appointed in the grade of Collector of Customs and Central Excise from the dates indicated against their names. Though the notification is of 2-12-93, the date of appointment as Collector appearing in Column 3 of the notification in respect of Shri S.S. Jha at Sl. No. 14 was 2-4-199.0. In Column 4 of the notification, the posting given to this officer on promotion is shown against his name as per which he was posted on promotion as Collector of Central Excise, Meerut. On noticing this aspect, the learned Counsel for the applicant has contended that there could not have been any retrospective appointment of the said officer as Collector from 2-4-1990 by the notification dated 2-12-1993.
4. The learned Counsel for the applicant who has been heard at great length, has contended that even though in the final order dated 1-5-2000, the Tribunal referred to the fact that the miscellaneous application No. 569/99 raising the additional ground was allowed, it did not deal with the ground at all in the said final order. When it was pointed out to the learned Counsel that there was already a rectification of mistake application No. 149/2000 filed by the applicant which was rejected on 18-1-2001, which fact was not disclosed in the present application, the learned Counsel submitted that even if one rectification application was rejected, second rectification application would be maintainable, since it was on a different ground. He submitted that the earlier promotion of Shri S.S. Jha as Collector of Central Excise, Meerut could not be treated as valid in view of the fact that the President appointed the said officer under the notification issued on 2-12-1993.
4.1. The learned Counsel relied upon the following decisions in support of his contentions :
(a) The decision of the Allahabad High Court in Income-Tax Officer, Lucknow v. S.B. Singar Singh and Sons and Anr. reported in 1970 (75) ITR 646 was cited for the proposition that it was well settled that a Court as a Tribunal has inherent jurisdiction to rectify a wrong committed by itself when that wrong causes prejudice to a party for which that party is not responsible.
(b) The decision of the Orissa High Court in A. Venkata Rao v. Commissioner of Income-Tax reported in 1993 (203) ITR 64 Orissa was referred to, for the proposition that the Tribunal is duty-bound to examine the points raised by parties and record definite conclusions on each point indicating the reasons in support of such conclusions.
(c) The decision of the Allahabad High Court in Hira Lal Sutwala v. Commissioner of Income-tax, UP reported in 1965 (56) ITR 339 was cited for the proposition that rectification of an apparent mistake does not prevent subsequent rectification of another apparent mistake under the same provision.
(d) The decision of the Supreme Court in Garikapatti Veeraya v. N. Subbiah Choudhury reported in 1957 (SC2) GJX 10 SC was cited for the proposition that the right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from that date the ‘lis’ commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at that date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
(e) The decision of the Supreme Court in Dayal Bah Co-operative House Building Society Ltd. v. Sultan Singh and Ors. decided on 6-1-1966 was cited to point out that the Supreme Court in the context of appointment of an officer who was Additional Revenue Assistant, Delhi to perform the functions of Collector under the Land Acquisition Act, held that the Act confers statutory powers of an exceptional character upon the Collector and it is well settled that the statutory powers could be exercised only subject to the limitations and conditions prescribed in the Act and, therefore, powers of special appointment conferred by Section 3(c) of the Land Acquisition Act could not be so exercised as to have retrospective effect.
(f) The decision of the Supreme Court in Achutyanand Singh and Anr. v. State of Bihar and Ors. was cited for the proposition that when a notification is published in the Official Gazette on a certain date, the order conferring the Registrar’s power on the Assistant Registrar mentioned therein could not be operative before that date and no valid order under Rule 39 of Bihar Co-operative Societies Rules, 1959, could be made by any such Assistant Registrar prior to that date.
(g) The decision of two Member-Bench of this Tribunal in Shree Warana Sahakari Dudh Utpadak Prakriya Sangh Ltd. v. CCE, Pune reported in 2003 (155) E.L.T. 465 was cited to point out, in the context of the provisions of Section 35C(2) that, the Tribunal held that the right to file rectification of mistake application within four years inhered in the appellant on the date of filing of the appeal and was not taken away by reduction in the period of limitation for filing such application from four years to six months, which came into force in May 2002. When this decision was cited, it was pointed out to the learned Counsel that it was over ruled by the Larger Bench of this Tribunal in Sri Shanmuga Bleaching Works v. CCE, Coimbatore reported in 2005 (181) E.L.T. 93 (LB) in which the Larger Bench held that it cannot be claimed that any substantive right was adversely affected by the amendment reducing the period of limitation for filing the rectification of mistake.
5. It appears from the final order dated 1-5-2000 made in appeal No. E/238/96-C and E/M/569/99 that the Tribunal was conscious of the grounds raised in the said application and in the very first paragraph of the order, it had allowed the application for additional grounds and additional evidence. The additional ground, as noticed above, was regarding the appointment of Shri S.S. Jha, which according to the learned Counsel was made retrospectively and, therefore, the show cause notice which was issued by the said officer in his capacity as Collector of Central Excise, Meerut on 4-3-1993 was invalid. The notification though issued on 2-12-1993 stated that the appointment of the persons mentioned therein was made from the dates indicated against them as per which Shri S.S. Jha, at Sl. No. 14 was appointed from 2-4-1990 as stated in Column No. 3, and in Column 4 his posting which was given on promotion was mentioned as Collector of Central Excise, Meerut. It appears from the order dated 1-5 2000 that all the contentions which were canvassed by the learned Counsel were set out in detail and no argument appears to have been canvassed on the basis of additional grounds raised in the miscellaneous application No. K/M/569/99. When the Tribunal has reproduced the contentions in great detail, there was no reason for it not to deal with such a ground if it was argued, after allowing the application for additional grounds.
6. We pointed out to the learned Counsel that in the earlier application for rectification vide E/ROM/149/2000, which was filed on 23-5-2000, that is, soon after the final order dated 1-5-2000 was made, no such contention was ever raised regarding the validity of the show cause notice on the ground that the officer was not duly appointed and, therefore, was not authorised to issue the show cause notice. If we see the record of that application, it is abundantly clear that an attempt was made to raise the various contentions for urging that the original order required to be rectified, but there was no whisper about the validity of the appointment of the officer concerned who issued the show cause notice. This appears to be so, because, the notification clearly mentioned the date from which Shri S.S. Jha was appointed as 2 4-1990 and the fact that he was posted as Collector of Central Excise, Meerut on promotion, which date (2-4-1990) was much prior to the date of issuance of the notice. The earlier rectification application No. E/149/2000 was rejected by the Tribunal on 18-1-2001 and the said order shows that only two contentions were argued as regards the mistake in the final order dated 1-5-2000 which were duly considered by the Division Bench in the light of the submissions made by the learned Counsel. From that order, it is clear that there was no reference at all made on behalf of the applicant to the additional ground which was raised in the miscellaneous application No. 569/99 and that it was never argued that there was a mistake committed in not considering that ground in the final order dated 1-5-2000, presumably because when the matter was heard, no argument was canvassed on the said additional grounds. Therefore, apart from the fact whether a fresh rectification application would lie after the reduced period of limitation, we are convinced that this application is a clear instance of an abuse of the process of the Court and a ground which though raised was never argued in the original appeal nor raised or argued in the earlier rectification application is now sought to be raised as an afterthought just for the sake of making a second rectification application. If the ground was at all argued and not considered in the final order dated 1-5-2000, we are sure that the tenacity with which the main matter and the first rectification of mistake application No. E/149/2000 were pursued, the learned Counsel would never have missed raising the contention that his argument on the basis of the additional ground was made and not considered. This application is, therefore, frivolous and deserves to be rejected with costs.
7. Before making the order as to the costs, we had called upon the learned Counsel to make a submission on the costs that may be imposed and the learned Counsel has only stated that he did not dispute the powers of this Court to impose the cost. Having regard to the frivolous nature of the application, we find that this is a fit case in which the applicant should be ordered to pay the costs to the opponent which are quantified at Rs. 25,000/-. The application is accordingly rejected with the costs quantified at Rs. 25,000/- to be paid to the opponent.
(Dictated in open Court on 24-6-2005).