At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
By, THE HONORABLE JUSTICE: S.K. MOHANTY
By, MEMBER AND THE HONORABLE JUSTICE: B. RAVICHANDRAN
For Petitioner: R. Santhanam, Advocate
1. This miscellaneous application is for rectification of mistake apparent from record in the Final Order No. 56137/2017, dated 24-8-2017 of the Tribunal [2018 (8) G.S.T.L. 396 (Tri.-Del.)]. In the said order, the Tribunal dismissed the appeal filed by the appellant. The Ld. Counsel for the applicant elaborated the grounds of their application filed under Section 35C(2) of Central Excise Act, 1944 applicable to provisions of Finance Act, 1994. He submitted that the final order requires rectification on the ground that the claim of the appellant for exclusion of reimbursable expenditure should have been allowed by following the binding precedent of various decisions of Supreme Court, High Courts and the Tribunal. Reliance was placed on the circular of the Board which is not relevant to the issue at hand. Further, various decisions relied upon by the appellant have not been dealt with by the Tribunal in the final order.
2. The Ld. AR opposed the application stating that the applicant is seeking to review the order of the Tribunal. Such course of action is not permitted by law. There is no apparent error or mistake in the Final Order of the Tribunal which requires rectification.
3. We have heard both the sides and perused appeal record. We note that the main point of dispute in the present appeal which was decided by the Tribunal is with reference to the claim of the appellant for exclusion of certain portion of value on the ground that these are attributable to reimbursable expenditure. This aspect has been examined at length by the Tribunal with reference to contracts which were also perused before the decision is taken. The reason for denying the claim of the appellant has been recorded in the final order based on the factual finding. The legal principle for allowing the exclusion of reimbursement expenditure has no relevance in view of the factual finding that there is no such reimbursement expenditure in view of the terms of contract and other supporting evidence perused by the Tribunal. We find no apparent mistake in such finding.
4. The Ld. Counsel also raised certain points regarding the non-applicability of circular dated 1-8-2002, to the fact of the present case. We note that the decision of the Tribunal is not based on the said circular. The decision is based on cumulative appreciation of all the facts and evidences presented before the Tribunal and after due analysis of the same. There is no apparent error in such finding.
5. We note that in terms of the ratio laid down by various judicial pronouncements of the Hon'ble Supreme Court, the Tribunal cannot take up exercise on re-appreciating the evidences and to embark on an act of reviewing the decision under the guise of rectification of mistake. In fact, the Hon'ble Supreme Court in Saurashtra Kutch Stock Exchange Limited : 2008 (230) E.L.T 385 (S.C.) held that "an error cannot be said to be apparent on the facts of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on the mere looking and does not need long drawn-out process of reasoning on points where there may be conceivably be two opinions. Such effort should not require any extraneous matter to show its incorrectness. To put it d
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ifferently, it should be so manifest and clear and no court would permit it to remain on record." These observations of the Hon'ble Supreme Court make it abundantly clear that in the present set of facts, there is no error apparent from the record calling for rectification by us. Accordingly, we find no merit in the present miscellaneous application. The same is dismissed.