LAXMI TOBACCO CO. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is a ROM Application filed by the above -named applicants praying for recall of Final Order No. A/1204/97 -NB, dated 26 -12 -1997 1999 (109) E.L.T. 679 (Tribunal) and for rectifying a mistake apparent on the face of the record appearing in paragraph 6 of the order.

(2.) LD . Counsel for the appellants, Shri Ravinder Narain submits that while disposing of the appellant's appeal by the impugned order, the Tribunal had held that the provisions of section 11A relating to limitation are not applicable to cases where notices have been issued under Rule 196 of the Central Excise Rules, 1944. The Bench had relied on the judgment of the Tribunal in U.P. State Cement Corporation Ltd. v. CCE reported in 1995 (79) E.L.T. 179. Ld. Counsel submits that the Bench had not taken into account a later judgement of the Allahabad High Court holding a contrary view, though the said decision had been cited before the Tribunal at the time of hearing the appeal on merits. In this connection, he also refers to the Stay Order dated 27 -8 -1996 in which the Bench considering the Stay Application had noted the submissions of the assessee's Counsel relying on the said Allahabad High Court judgment holding that the demand of duty under Rule 196 will be governed by the provisions of Section HA of the Central Excise Act. He, therefore submits that having regard to the decision of the Hon'ble Allahabad High Court, the impugned Final Order may be recalled and the mistake pointed out above rectified. In this connection, he relied on two earlier decisions of this Tribunal, viz., Vishwakarma Corporation Ltd. v. CCE, Kanpur, 1994 (74) E.L.T. 363 (Tribunal) and West Coast Industrial Gases Ltd. v. CCE, Cochin, 1998 (104) E.L.T. 478 (Tribunal). In the Vishwakarma Corporation Ltd. case, the Tribunal had held that if the Final Order of the Tribunal omits to mention cases which the appellant considers relevant to the issue involved, it would constitute an error apparent on the face of the record. In the West Coast Industrial Gases Ltd. also it was held that non -consideration of judicial precedents cited before the Tribunal but not considered while passing the order would be an error apparent on the face of the record making the order liable to recall.

(3.) LD . JDR, Shri T.A. Arunachalam leaves it to the Bench.