Page 177 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] MALABAR REGIONAL CO-OP. MILK PRODUCERS UNION LTD. v. C.C.E., COCHIN 711

Appellate Tribunal allowing the application for rectification of mistake, he is not
entitled to challenge the consequential order passed to the extent of deciding the
appeal afresh, based on the ground that recalling of the earlier order under the
guise of rectification of mistake, was not legally sustainable.
7. Per contra, Sri. George Johnson, Learned Counsel appearing for the
appellant had pointed out that, the appeal under Section 35G is provided only
from any order passed in an appeal. Annexure-D order of the Tribunal dated
14-7-2009 was passed not in an appeal, but on the ROM application (rectification
of mistake application). Further it is pointed out that, Section 35C(2) enables the
Tribunal only to make such amendments in the order in tune with the mistake
brought into its notice and that the said provision does not empower the Tribu-
nal to recall its earlier order and to restore and hear and decide the appeal afresh.
It is further pointed out that, while deciding the appeal afresh through the order
impugned herein, the imposition of penalty was reaffirmed based on a subse-
quent decision of the Apex Court, which ought not have been taken as a ground
to reverse the earlier order in the appeal, which had attained finality in between
parties inter se.
8. While evaluating the rival contentions regarding maintainability of
the challenge raised, we are of the opinion that the appellant can be permitted to
take all the grounds available, in order to challenge the fresh order passed in the
appeal, including the ground that recalling of the earlier order was illegal and
erroneous. We are of the considered opinion that, provisions contained in Section
105(2) of the Code of Civil Procedure, 1908 will govern the issue involved, espe-
cially in view of Section 35G(9) of the Central Excise Act, which provides that
provisions of Code of Civil Procedure, 1908 will apply with respect to appeals to
the High Court filed under Section 35G. Hence, we are of the considered opinion
that, any failure to challenge the order passed by the Tribunal allowing the recti-
fication of mistake, will not in any manner preclude the appellant from challeng-
ing the final order in the appeal which was passed after recalling the original
order based on allowing the application seeking rectification of mistake, on the
ground that recalling of the earlier order itself was illegal.
9. In view of the finding rendered as above on the question of main-
tainability, the substantial question of law which arise for consideration in this
appeal is :
Whether the Tribunal was right in reopening a concluded appeal under
the guise of rectification of a mistake apparent on the face of record,
based on a subsequent decision of the Hon’ble Supreme Court, by treat-
ing that the subsequent declaration of law is a reasonable ground to re-
verse its earlier decision in the appeal and to decide the matter afresh
against the appellant?
10. Section 35C(2) provides that the Appellate Tribunal may at any
time within six months from the date of the order, with a view to rectify any mis-
take apparent from the record, amend any order passed by it under sub-section
(1) and shall make such amendments if the mistake is brought to its notice by the
Principal Commissioner of Central Excise or Commissioner of Central Excise or
the other party to the appeal. Question to be examined is as to whether any sub-
sequent decision of the Hon’ble Supreme Court on any legal point which was
already decided in an appeal, which is having the effect of reversing the decision,
can be considered as a mistake apparent from the record. In this regard, in a ca-
EXCISE LAW TIMES  1st June 2020  177