Case: Commissioner of Central Excise Vs. ASCU Ltd

2. Briefly stated, the facts are as followsrespondents were called upon to show cause as to why they should not be made liable to pay duty and penalty for not having disclosed that they were manufacturing densified wood. The Commissioner, after hearing the respondents, held that the respondents were not manufacturing densified wood and that therefore they were not liable to pay duty.3. The Department filed an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal (CEGAT). By an order dated 24th July, 1998 it was held that the respondents were manufacturing densified wood. It was further held that the respondents had not suppressed any material orany fact and that therefore the extended period of limitation was not available to the Department. The matter was then remanded to the Commissioner for determination of the duty payable for the period of six months which was available to the Department. In passing the order dated 24th July, 1998, CEGAT relied upon, reports of Alipore Test House, Central Revenue Control Laboratory and Commercial Literature of the respondents.

Reasoning:
10. In spite of so observing, the Judicial Member held that as the Tribunal had relied upon the test reports, the order should be recalled and the appeal should beIt may be noted that in the original order, there was decision even on the question of limitation in respect of which there was no error apparent on the face of the record even that portion of the order has been set aside.13. As stated above, the scope of correction which can be made by the Tribunal under Section 35C(2) is limited. Undoubtedly if a decision is based solely on material which is irrelevant or which could not have been used then possibly it could be said that there is a mistake apparent from the record. However, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used.14. In this case, admittedly while passing the order dated 24th July, 1998, apart from the reports, reliance had also been placed upon the literature of the respondents themselves. The Judicial Member notes that reliance had been placed upon this literature. Judicial Member therefore records, as noted above, that the Tribunal may again come to the same conclusion. If that be so, then it is clear that there is no mistake apparent on the record. In such a case there can be no rectification under Section 35C(2). We, therefore, set aside the impugned order and restore the original order dated 24th July, 1998.