HINDUSTAN LEVER LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) R .K. Abichandani, J. (President) 1. The short question that has come before us by this reference is whether the Larger Bench decision of this Tribunal rendered in Gujarat State Fertilizers and Chemicals v. Commissioner of Central Excise, Vadodara stands overruled, by virtue of the decisions of the Madras High Court in V. Guard Industries Ltd. v. Commercial Tax Officer, Coimbatore, and the Gujarat High Court in RPG Life Sciences Ltd. v. Union of India (UOI) .

(2.) A Division Bench of this Tribunal, while deciding appeal Nos. E/2780 and 2781/98, passed an order on 21 -4 -2004 allowing the appeals by way of remand on the question of quantum of bank charges while deciding the issue of interest on receivables against the assessee by relying on the decision of the Tribunal in Gomti Carbon dioxide . Thereafter, rectification application was made, inter alia, on the ground that Larger Bench decision of the Tribunal in Gomti Carbon Dioxide (supra) was reversed by the decision of the Supreme Court in A. Infrastructure Ltd. v. Commissioner of Central Excise, Jaipur, , and therefore, could not have been relied upon and this mistake was required to be rectified under Section 35C(2) of the Central Excise Act, 1944. While hearing the application the Bench was confronted with rival views on its power to rectify. The Bench took into consideration the decision of the Madras High Court in V. Guard Industries v. Commercial Tax Officer , holding that rectification of a mistake could be done in a situation wherein a decision was contrary to the law laid down by the Supreme Court. It also took into consideration the decision of the Supreme Court in Sai Narayan Row v. Commissioner of Income Tax reported in 64 ITR 67, to the effect that non -consideration of a decision of the Supreme Court was an error on the face of the record, which should be rectified. It was also observed that in view of the said Division Bench decision of the Madras High Court, it appeared that the decision of the Larger Bench of the Tribunal holding to the contrary in Gujarat State Fertilizers and Chemicals v. Commissioner of Central Excise, Vadodara may not be good law. It was observed that since the said Larger Bench decision was impli -edly overruled by the decision in V. Guard Industries v. Commercial Tax Officer, Coimbatore, the matter was required to be referred to a Larger Bench to consider whether a "formal overruling" in the case of Gujarat State Fertilizers and Chemicals (supra) was called for.

(3.) THE learned Counsel appearing for the applicant who initially gave list of several decisions, ultimately referred to the following decisions of the Apex Court and the High Courts; -