COMMISSIONER OF CENTRAL EXCISE Vs. MARVEL VINYLS LTD.

JUDGEMENT

(1.) This is an application filed by the Revenue for rectification of mistake in Tribunal's Misc. Order No. M/356/2002 -NB, dated 7 -11 -2002 by which the Tribunal has recalled its Final Order Nos. A/466 -68/2002 -NB(D), dated 19 -4 -2002 [2002 (145) E.L.T. 649 (Tri. -Del.)].

(2.) When the matter was called, no one was present on behalf of the respondents. We, therefore heard Shri U. Raja Ram learned Departmental Representative and perused the records. The learned Departmental Representative submitted that the Tribunal has recalled its earlier Final Order on the ground that the Application for adjournment by the respondents was not placed before the Tribunal; that the Tribunal has made an error as the Tribunal was well aware of the adjournment request made by the respondents while passing the final Order dated 19 -4 -2002; that the Supreme Court has held in Bani Singh v. State of U.R. AIR 1996 SC 2439 that the Court is not bound to adjourn the case if Applicants or his lawyer are not present and his case can be decided on merits; that after passing the Order, Court becomes function offices evidence and are not entitled to vary the terms of the Order as held by the Supreme Court in the case of Dwarka Das v. State of M.P., AIR 1989 SC 1031.

(3.) We have considered the submissions of the learned Departmental Representative. First of all, the application for rectification of mistake under Sec tion 35C(2) of the Central Excise Act lies against the Order passed by the Tribunal under Section 35C of the Central Excise Act and not against any other Order. Secondly the Revenue, has not given any reason as to how the Tribunal was well aware of the fact of adjournment request made by the respondents while passing the final Order in question. A perusal of the final Order clearly reveals that the Tribunal has merely mentioned in Para 4 that "none appeared for the respondents". We also observe that when the Misc. application was heard, the learned Senior Departmental Representative did not have any objection in recalling the Order. Further, the Tribunal can recall the Final Order which has been passed ex parte without hearing the parties as held by the Supreme Court in J.K. Synthetics Ltd. v. Commissioner of Central Excise - 1996 (86) E.L.T. 473 (S.C.). Accordingly we find no merit in the application filed by the Revenue which is rejected.