COMMISSIONER OF S.T. Vs. MAHAVIR COCONUT INDUSTRIES

JUDGEMENT

(1.) THIS application filed by the department (appellant in Appeal No. ST/163/2007; ST/175/2008; ST/176/2008 and ST/362/2008) prays for rectification of what is said to be 'apparent error' in Miscellaneous Order Nos. 531 -534/2010, dated 8 -11 -2010 which was passed in a set of four ROM applications Nos. 26 -29/2010, filed by the department for rectification of Final Order Nos. 761 -764/2010, dated 4 -5 -2010 passed by this Bench. It is submitted that in the above Miscellaneous (ROM) Applications, the department had prayed for restoration of all the four appeals for fresh hearing, but only two of them (ST/175/2008 and ST/176/2008) were restored. Hence the present application. Learned SDR has prayed for restoration of the other two appeals (ST/163/2007 and ST/362/2008) also through "rectification" of Miscellaneous Order dated 8 -11 -2010. Learned consultant for the respondent submits that the miscellaneous application now moved by the department is not maintainable as it seeks to rectify an alleged mistake in a Miscellaneous Order passed by this Bench. It is submitted that Section 35C(2) of the Central Excise Act, whereunder the present application was filed, permits only rectification of mistake in a Final Order of the Tribunal. It is submitted that the proviso does not permit rectification of any mistake in a Miscellaneous Order passed by the Tribunal. In this connection, reliance is placed on CCE, Mumbai v. Pleasantime Products -, 2009 (241) E.L.T. 459 (Tri. -Mumbai).

(2.) AFTER considering the submissions, we have found substance in the objection raised by the learned Consultant who is supported by the decision cited by him. The present application, undisputedly, seeks rectification of what is said to be an 'apparent mistake' in a Miscellaneous Order passed by this Bench earlier. The application is not maintainable and hence dismissed.