(1.) THIS matter has come up before me on account of the difference of opinion expressed by two Members who heard these applications filed for rectification of mistake. Applications for rectification of mistake were filed by the appellant in Appeal Nos. E/2216 -18 and 2234 -2238/97 -NB. Those appeals were disposed of by a Bench by Final Order No. A/335 -39/99 -NB(DB) dated 14.5.1999. By that Final Order, order impugned therein was modified to some extent. Application for modification of that final order was filed on 16.7.1999 as E/ROM/124/99 -NB. Subsequently, another application praying for rectifying the mistakes in Final Order was filed on 7.8.1999 as E/ROM/137/99 -NB. These ROM applications were posted before Members who passed the final order in the appeals. After hearing the ROMs Members passed Misc. Order No. M/209 -13/99 -NB(DB). In that order, the Judicial Member took the view that ROM application has only to be rejected, while the Vice President's view was to recall the earlier order dated 4.6.1999 and to post the appeal for fresh hearing on the various points involved in the matter.
(2.) LEARNED Counsel representing the appellant tried to bring out an error which is committed by the Bench in passing final order dated 14.5.1999, in not considering all the relevant materials which were helpful to the appellant. Such an exercise undertaken by the Learned Counsel, I am afraid, cannot be reason for entertaining an application for correcting mistake which happened to creep in the final order. Under the cover of Section 35(C) for rectification of mistake, appellant cannot argue as if the petition happens to be an appeal from the final order passed by the Tribunal.
(3.) LEARNED Counsel representing the petitioner urged that in the Memo. of Appeal a ground questioning the propriety of Department in exercising extended period of 5 years under the proviso to Section 11A was raised. That was not dealt with by this Tribunal when the final order was passed. That can be a ground for exercising power under section 35C(2). In support of this contention he placed before me some decisions of this Tribunal. I think this ground cannot be availed of by the appellant in this case because the plea of limitation was dealt with by the Tribunal in passing the final order. In paragraph 6 of the final order this Tribunal observed that: