Case: Commissioner of Cental Excise, Belapur, Mumbai Vs. RDC Concrete (India) P. Ltd

2. By virtue of the impugned order, the CESTAT has rectified its Order dated 4th November, 2008 passed in Appeal No.E-2032-2033/06 in pursuance of an application for rectification filed by the present respondent- assessee under Section 35C(2) of the Central Excise Act, 1944 (hereinafter referred to as `the Act).It is the case of the appellant that the aforestated final order dated 4th November, 2008 passed by the CESTAT has been rectified in pursuance of the application filed by the respondent herein. The case of the appellant, in this appeal, is that under the garb of rectification, the CESTAT has modified its order dated 4th November, 2008 in such a way as if the respondent asessee had filed an appeal against the said order and the CESTAT has virtually allowed the appeal against its own order.

Reasoning:
17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted at an earlier point of time were accepted by the CESTAT after hearing the rectification application. It is strange as to how a particular decision taken by the CESTAT after considering all the relevant facts and submissions made on behalf of the parties was changed by the CESTAT. There was no mistake apparent on record when the CESTAT did not accept a submission of the respondent-assessee to the effect that the officer appointed to value the goods manufactured by asessee should not have been engaged as a cost accountant.So far as the judgment delivered in Commissioner of Central Excise, Mumbai v. Bharat Bijlee Limited, (supra) is concerned, this Court held therein that when the Tribunal had totally failed to take into consideration something which was on record, the Tribunal had committed a mistake apparent on the face of the record. In the instant case, the evidence which was on record was duly appreciated by the Tribunal at the first instance but the Tribunal made an effort to re-appreciate the evidence and re-appreciation can never be considered as rectification of a mistake. We are, therefore, of the view that the aforementioned judgment would not help the respondent-assessee.20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008(221) E.L.T 11 (S.C.), is concerned, there also the Tribunal had not considered certain material which was very much on record and thereby it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different.