RATHI ISPAT LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This petition for rectification of mistake has been filed under Section 35C(2) of the Central Excise Act, 1944 on the ground that though in the first paragraph of the order made on 1 -5 -2000 in appeal No. E/238/96 -NB and E/M/569/99 -NB, it was stated that the said miscellaneous application No. E/569/99 dated 22 -10 -1998 filed by the appellant praying for additional grounds, and additional evidence was allowed after hearing the parties, the grounds raised therein were not at all dealt with while disposing of the appeal under the said order by which the Tribunal sustained the denial of Modvat credit to the tune of Rs. 39,319/ - in the ferro silicon and Rs. 11,50,021/ - involved in the case of 603.613 MT of ferro manganese and the penalty which was reduced from Rs. 2,50,000/ - to Rs. 1,50,000/ -. It is stated in this ROM that it was filed within the "then" time limit of four years which was prescribed under Section 35C(2) of the Act.

(2.) The miscellaneous application No. E/110/2004 has been filed in connection with the said rectification application stating that since the rectification was moved against the final order dated 1 -5 -2000 when the period of four years was available, in view of the judgment in Shree Warana Sahakari Dudh Utpadak Sangh Ltd. v. CC and CE, Pune reported in 2003 (155) E.L.T. 465 and in Baroda Machinery Manufacturers v. CCE, Bombay reported in 1997 (91) E.L.T. 88, the rectification petition was required to be entertained on merits. In other words, according to the applicants, the rectification application would be governed by the provision as it stood prior to the amendment made from May, 2002 by which, the period of limitation for filing a rectification application was reduced from four years to six months.

(3.) The additional ground which was raised by miscellaneous application No. E/569/99 was to the effect that Shri S.S. Jha, who had issued the show cause notice dated 4 -3 -1993 as Collector of Central Excise, was appointed by the President as Collector of Central Excise, Meerut on 2 -12 -1993 by the Gazette Notification 17/93, dated 2 -12 -1993 (Sl. No. 14) and, therefore, the show cause notice was issued without jurisdiction. A copy of the notification dated 2 -12 -1993 which is annexed with the application shows that 46 officers mentioned therein were appointed in the grade of Collector of Customs and Central Excise from the dates indicated against their names. Though the notification is of 2 -12 -93, the date of appointment as Collector appearing in Column 3 of the notification in respect of Shri S.S. Jha at Sl. No. 14 was 2 -4 -199.0. In Column 4 of the notification, the posting given to this officer on promotion is shown against his name as per which he was posted on promotion as Collector of Central Excise, Meerut. On noticing this aspect, the learned Counsel for the applicant has contended that there could not have been any retrospective appointment of the said officer as Collector from 2 -4 -1990 by the notification dated 2 -12 -1993.