(Prayer in C.M.A(MD)No.469 of 2010: Civil Miscellaneous Appeal filed under Section 35-G of the Central Excise Act, 1944 against Final Order No.550 of 2009 of CESTAT, dated 05.05.2009 read with Misc. Order No.179 of 2010 dated 8.3.2010 made in Appeal No.E/122-123/2009, on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
C.M.A(MD)No.470 of 2010: Civil Miscellaneous Appeal filed under Section 35-G of the Central Excise Act, 1944 against Final Order No.551 of 2009 of CESTAT, dated 05.05.2009 read with Misc. Order No.180 of 2010 dated 8.3.2010 made in Appeal No.E/122-123/2009, on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.)
K. Ravichandrabaabu, J.
1. C.M.A(MD)No.469 of 2010 is filed against the Final Order No.550 of 2009 of CESTAT, dated 05.05.2009 read with Misc.Order No.179 of 2010, dated 8.3.2010 made in Appeal No.E/122-123/2009, on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
2. C.M.A(MD)No.470 of 2010 is filed against the Final Order No.551 of 2009 of CESTAT, dated 05.05.2009 read with Misc. Order No.180 of 2010, dated 8.3.2010 made in Appeal No.E/122-123/2009, on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
3. The appellant in both appeals is one and the same and an assessee with the Central Excise Department. The following are the facts and circumstances, which culminated into filing of these appeals by the assessee.
i) The assessee engaged in the manufacture of cotton yarn, polyester yarn and polyester cotton blended yarn etc. Based on an information received that the assessee had indulged in unaccounted manufacture of fabrics of cotton etc., and clandestinely cleared them without payment of duty and indulged in clearance of grey fabrics in the guise of grey fabrics/loom-state fabrics, officers attached to Headquarters Preventive Unit of Madurai Central Excise Commissionerate visited the assessee's unit and conducted stock challenge of finished fabrics, stocked in the bonded Excise go-downs, Grey Ware House and Finished Ware House. Based on a prima facie and reasonable belief that excess quantities were kept for illicit removal without bringing them into RG+ stock, the Revenue seized those excess stocks under mahazars. Thereafter, the seized fabrics were released to the assessee provisionally on execution of General Bond for Rs.1,01,04,000/-(Rupees one crore one lakh and four thousand only) with security for Rs.15,00,000/-(Rupees fifteen laksh only) in the form of Bank Guarantee. When the persons in charge of the Excise Go-downs etc., and those who were present during the time of stock challenge at the relevant places were asked to explain the reasons for the excess of fabrics seized and shortage of fabrics found during the stock taking, as recorded in the mahazars, an explanation was furnished by the assessee on 20.01.2001. Not being satisfied with the explanation tendered by the assessee, two show-cause notices were issued on 11.5.2001 and on 2.11.2001 calling upon the assessee to show-cause as to why the subject-matter fabrics referred to in the show-cause Notice No.30 of 2001 should not be confiscated and that the same should not be classified as grey fabrics under appropriate tariff entries for the purpose of levy of duties, as applicable and for imposing penalty under Rule 173 (Q) and as to why the duty of excise of Rs.1,25,60,718/-(Rupees one crore twenty five lakhs sixty thousand seven hundred and eighteen only) should not be demanded under rules 49 and 223-A of the Rules r/w Rule 8 of CER and Section 11A of CEA. Consequently, two orders in Original No.10 and No.11 were passed on 28.2.2006 by the Adjudicating Authority confirming the demand of duty, classifying the subject-matter fabrics as grey fabrics under appropriate tariff entries., imposing a penalty of Rs.75 lakhs, confiscating the subject-matter fabrics under
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Rule 173-Q, however by allowing the Petitioner to redeem the goods confiscated on payment of redemption fine of Rs.25 lakhs in lieu of confiscation, modifying to enforce a bank guarantee against the fine in lieu of confiscation and imposing a penalty of Rs.25 lakhs under Rule 173-Q of the Central Excise Rules, 1944. Challenging the said order, the assessee went on appeal before the Customs, Excise and Service Tax Appellate Tribunal, Chennai. By passing a final order on 06.09.2006, the Tribunal set aside those two orders in original, dated 28.02.2006 and allowed those appeals by way of remand thereby directing the Revenue to supply the copy of the letter, dated 20.01.2001 to the appellant and to pass a speaking order after giving a reasonable opportunity of being personally heard.
ii) On remand, the Adjudicating Authority once-again passed two orders in Original No.11 and 12, dated 21.11.2008 and 27.11.2008 respectively, once again confirming the duty, penalty and confiscation.
iii) Challenging the said orders in Original, the assessee once- again went on appeal before the Tribunal. By an order, dated 05.05.2009 passed in Final Order Nos. 550 and 551 of 2009, the Tribunal once-again set aside the orders in Original and remitted the case for fresh decision only on the reason that the assessee was not supplied with the said letter, dated 20.01.2001, as directed by the Tribunal in its earlier order, dated 28.02.2006. Accordingly, the Tribunal directed the Revenue to furnish a copy of the said letter with annexure mentioned therein and decide the case after extending reasonable opportunity to the assessee of being heard.
iv) The Revenue however filed application under Section 35-C(2) of the Central Excise Act, 1944 and prayed for rectification of the mistake in respect of Final Order Nos.550 and 551, dated 05.05.2009 by contending that non-supply of the letter, dated 20.01.2001 with its enclosures did not violate the principles of natural justice, as the said letter itself had originated from the assessee themselves. It is also contended by the Revenue that even otherwise, as the Department had misplaced that letter at some point of time, they are not in a position to supply the copy of the said letter to the assessee. The said Rectification applications were however dismissed as withdrawn on 04.01.2010, with liberty to move applications for modification. Consequently, the Revenue filed Modification Petitions seeking for modification of the order passed in Final Order Nos. 550 and 551 of 2009 only to the extent that the letter, dated 20.01.2001 of the assessee will not be relied upon for the de-nova adjudication. The Tribunal by order, dated 8.3.2010 allowed the above Miscellaneous applications for modification and directed fresh adjudication without relying upon the letter, dated 20.01.2001. Challenging the said order along with the Final Orders passed in Final Order Nos. 550 and 551 of 2009, the present appeals are filed before this Court.
4. These appeals were admitted by this Court by raising the following substantial questions of law:
(1) Whether the first respondent is empowered to overlook the earlier final decree dated 6.9.2006, particularly when it has attained finality?
(2) Whether the impugned Misc. Order Nos. 179 of 2010 and 180 of 2010,dated 8.3.2010 tenement to review of earlier orders?
(3) Whether the first respondent was justified in modifying its final order Nos.550 of 2009 and 551 of 2009, dated 5.5.2009, under Section 35C of the Central Excise Act, 1944, when there is no mistake apparent on the face of the record.?
(4) Whether the first respondent was justified in entertaining the applications dated 21.1.2010 filed after expiry of limitation of six months from the date of final order, dated 5.5.2009 and whether the impugned Misc.Order Nos.179 of 2010 and 180 of 2010,dated 8.3.2010, are sustainable in law under Section 35-C(2) of the Central Excise Act, 1944?
5. Mr.Sriram Panchu, learned Senior Counsel appeared and argued for the appellant. A notes of submission is also filed by the counsel for the appellant. The sum and substance of the submissions made on behalf of the appellant are as follows:
(a) The Adjudicating Authority passed the order in Original in violation of principles of natural justice, since one of the material document referred to in the show-cause notice namely, the letter dated 20.01.2001 with annexures furnished by the assessee to the Department even before issuance of show-cause notices was not supplied despite several requests made for furnishing the same. The Revenue failed to supply a copy of the said letter with annexures, even though a specific direction was issued by the Tribunal in its Final Order passed on 06.09.2006.The said letter was not furnished to the assessee even after the subsequent final order passed by the Tribunal on 05.05.2009 specifically remanding the matter with a direction to furnish a copy of the said letter to the assessee and thereafter to conduct the enquiry and to pass an order of adjudication. Therefore, the order of adjudication passed without furnishing such document violates the principles of natural justice.
(b) The Rectification application and the subsequent Modification Application filed by the Revenue before the Tribunal are not at all maintainable. Section 35-C(2) of the Central Excise Act, 1944 does not empower the Tribunal to entertain an application for modification of the order already passed. Under the said provision, only application for rectification of the mistake, that too, apparent from the record, can be filed, whereas, in this case, admittedly, no mistake apparent from the face of the record committed by the Tribunal, was pointed out as the reason for either filing Rectification petition or for filing Modification Petition. Therefore, in effect, by way of Modification Petition, the Revenue sought for review of the Final Order passed on 05.05.2009, which power is not available to the Tribunal under the above said Act. Thus, the Tribunal erred in law in entertaining the Modification Petition and allowing the same thereby directing the Adjudicating Authority to conduct a de-nova enquiry without reference to the said letter, dated 20.01.2001.
(c) The first final order passed by the Tribunal, dated 06.09.2006 cannot be over-looked by the Tribunal, especially when such order had become final and not challenged by the Revenue. The second final order passed by the Tribunal on 05.05.2009 only reiterated its earlier order, dated 06.09.2006 to supply the said letter, dated 20.01.2001. Therefore, the said basic order, dated 06.09.2006, which reached its finality, cannot be challenged by the Tribunal.
(d) The Modification Application filed and entertained by the Tribunal in effect is for modifying the first order of the Tribunal, dated 06.09.2006. The applications filed after three years, even assuming maintainable, are thus barred by limitation, since Section 35-C(2) of the Act contemplates an application for rectification to be filed only within six months.
6. In support of the above contentions, the following decisions are relied on:
1. 2004(163)ELT 403 (SC)(The Commissioner of Central Excise, Vadodra .vs. Steelco Gujarat Limited)
2. 2009(236)ELT 417(SC)The Commissioner of Customs and Central Excise /vs/ Hongo India(P)Limited.
7. Per contra, the Senior Panel Counsel for the second respondent Mr.B.Vijay Karthikeyan, apart from submitting written submissions, has made his oral submission as well. The sum and substance of the submissions made on behalf of the second respondent are as follows:
The letter, dated 20.01.2001, admittedly is the letter of the assessee themselves with enclosures. Though initially a copy of the said letter was not furnished to the assessee, however the said letter along with copies of other documents except document in S.No.15, were furnished to the representative of the assessee on 26.03.2002, which was duly acknowledged by him. Therefore, the very contention as if the said letter was not furnished to the assessee is factually incorrect. The assessee in their own letter, dated 19.08.2004, in effect, only sought for providing the copies of four documents once-again, out of which, one is the letter, dated 20.01.2001 with enclosures. Therefore, the appellant admitted the receipt of the said letter earlier and however, they sought for furnishing the same once-again. Therefore evidently the appellant was dragging on the matter by repeatedly asking for copy of the said letter, even though the same was furnished as early as on 26.03.2002. Finally, though the assessee submitted a letter on 25.01.2006, at the time of personal hearing, requesting for two months time to reply to the show-cause notice, the fact remains that the assessee did not file a reply at all. Consequently, the Adjudicating Authority passed an order in Original on 6.9.2006 based on the available materials. Thus, there is no violation of principles of natural justice. The Rectification Petition originally filed was withdrawn with liberty to file a Modification Petition. Therefore, the Modification Petition is maintainable and the same is also not hit by limitation. The entire issues raised herein with regard to the maintainability of the Modification petition and the limitation in filing the same were not raised before the Tribunal. Hence raising such issue before this Court as the first time cannot permit. Rule 41 of the Customs Excise and Service tax Appellate(Procedure and Rules)1982 empowers the Tribunal to pass such orders or give such directions, as may be necessary, to secure the ends of justice. Therefore, the power to modify the order is provided under Rule 41 of the said Rules, even assuming that the same is not available under Section 35-C(2) of the Act.
8. In support of the above submissions, he relied on the following case laws:
1. 2008(226) ELT 45(Bombay(Sarla Performance Fibres Limited .vs. Union of India)
2. 2008(229)ELT 164(SC)(Sree Ayyanar Spinning and Weaving Mills Limited .vs. Commissioner of Income Tax)
9. Mr.Sriram Panchu, learned Senior Counsel for the appellant by way of reply submitted as follows:
Even though the letter, dated 20.01.2001 was sent by the assessee with enclosures, since the copy of the same is not available with the assessee, reply to the show-cause notice could not be effectively given. The unit was closed in the year 2002 and therefore the assessee could not even trace the records to give a suitable reply. Once a document is referred to in the show-cause notice, it is the duty of the Revenue to furnish the same to the assessee, before adjudicating the matter, otherwise, it would amount to violation of principles of natural justice.
10. Heard both sides and perused the materials placed before us.
11. The main grievance of the appellant is in two-fold. Firstly, it is contended that the order in Original passed without furnishing the letter, dated 20.01.2001, is in violation of principles of natural justice. Secondly, it is contended that the Tribunal having passed a final order directing the Revenue to furnish a copy of the said letter with enclosures to the assessee, is not empowered to modify its own order, which in-turn would amount to review, in the absence of any power to do so under the Central Excise Act.
12. Let us consider the first contention of the appellant with regard to the non-furnishing of the letter dated 20.01.2001.
13. It is true that the show-cause notices issued on 11.05.2001 and 02.11.2001 referred to the said letter dated 20.01.2001 along with enclosures at S.No.14 of Annexure-B documents relied upon. There is no dispute to the fact that the said letter with enclosures is nothing but an explanation given by the assessee themselves to the shortages and excess of fabrics in the Excise Go-downs noticed vis-a-vis., system stock. Therefore it is evident that the said letter is their own document explaining the shortages and excess of fabrics, which is the subject-matter of the show-cause notices. Thus it is evident that the said letter was issued by the assessee immediately after the investigation conducted at their premises, even before the issuance of the show-cause notice. Perusal of the show-cause notice would clearly indicate that the Commissioner of Central Excise has dealt with in detail about the stand taken by the assessee in the said letter, dated 20.01.2001 for explaining the shortages and excess of fabrics and however, found that those reasons are not acceptable. Therefore the Commissioner of Central Excise issued the show-cause notices and called upon the assessee to show cause as to why duty, penalty and confiscation etc should not be imposed. When the show-cause notice was issued on 11.05.2001 in one matter and on 02.11.2001 in another matter, We fail to understand as to why the appellant, who furnished the explanation on 20.01.2001 with enclosures, just four months before the issuance of show-cause notice, was not in a position to reiterate such contentions once again by way of a reply to the show-cause notice, without seeking for a copy of such letter from the Revenue, merely because it was shown as one of the documents relied upon in the show-cause notice. Admittedly the assessee claimed that the unit was closed only in the year 2002. Hence it is evident that on the date of receipt of show-cause notices, the unit was very much functioning and the assessee would have been in a position to suitably reply immediately.
14. At this juncture, we would like to point out that the said letter, dated 20.01.2001 is not relied on by the Revenue as an adverse document against the assessee. On the other hand, it is the document of the assessee themselves, that too, an explanation given by them to the short-fall and excess of the fabrics. Only when a document relied on adversely against the assessee, if not supplied to the assessee before passing the order of adjudication, such non-furnishing may be construed as an act in violation of principles of natural justice. In this case it is not so.
15. Even otherwise, as pointed by the learned Senior Panel Counsel for the second respondent, it is evident that the said letter was in-fact supplied to the assessee's representative on 26.02.2002, in view of the acknowledgement made by one R.Manoharan stating that he received xerox copies of all relied upon documents (except S.No.15), mentioned in the show-cause notice No.20 of 2001 and 30 of 2001 from the Superintending of Central Excise, HBQ, Madurai. Thus it is contended by the Revenue that the copy of the letter dated 20.01.2001 was already furnished to the assessee and therefore principles of natural justice was not violated. We find force in the said submission not only based on such acknowledgement on 26.02.2002 and also in view of the assessee's own communication, dated 19.08.2004 addressed to the Commissioner of Central Excise, Tirunelveli, requesting him to once-again provide copies of four documents, out of which, one is the said letter, dated 20.01.2001. The said letter reads as follows:
The Commissioner of Central Excise,
Central Excise Revenue Building
Tirunelveli – 627 007.
Sub: Show Cause Notice No.20 of 2001, dated 2.11.2001 and No.30 of 2001, dated 11.5.2001.
This refers to our letter dated 5th July 2004 and your office response letter dated 8th July 2004 on the above subject.
We humbly submit that we are in the process of preparing reply to the above show cause notices. We once again bring to your kind notice that in view of closure of our unit Madura Fabrics Division in early 2002 to which the above show cause notices were issued and due to non-availability of Personnel who handled excise records during the relevant period, we are even unable to trace out certain documents/statements which were relied upon in the show cause notices and said to have been received by us. We therefore, request you to place once again provide us copies of the following documents and statements given by out personnel for our perusal and then prepare proper reply to the above show cause notice.
Documents and Statements.
1. Chemical Examiner letters issued from File No.LCx.52/S/636/200-01, dated 7.3.2001 and 10.4.2001.
2. Statement dated 30.4.2001 given by Sri R.Murali Narayanan, Information Technology Manager.
3. A file containing letter dated 20.1.2001 along with the enclosures-64 sheets.
4. Statement dated 20.4.2001 given by Mr.R.Nallasivan,Sales Executive-5 sheets.
We submit that it is not out intention to unnecessarily defer submission of reply to the show cause notice but we are handicapped in tracing out the relevant records, invoices, stock registers etc., including documents which were relied upon in the show cause notice, due to non availability of concerned personnel.
We therefore humbly request you to please provide us time upto October 2004 to trace out all the relevant documents, study and prepare proper reply to the show-cause notice.
We extremely sorry for the inconvenience caused.
for MADURAI COATS PRIVATE LIMITED.
16. The tenure of the above-said letter would undoubtedly indicate that the present contention raised before us in respect of the said letter, dated 20.01.2001 is not factually correct. It is apparent that appellant wants to take advantage of the fact that the said letter is missing from the file of the Revenue. The learned Standing Counsel for the Revenue submitted that already disciplinary proceedings are initiated against the staff on account of missing of such letter.
17. Further, it is seen from the communication, dated 27.12.2005 issued by the Commissioner of Central Excise that the assessee was finally directed to appear for personal hearing on 25.01.2006 without fail with liberty to file written submissions if any. However, the assessee seems to have submitted a letter dated 25.01.2006 requesting for two months time to reply to the show- cause notice. This is evident from the record of personal hearing which was also signed by the Manager(Excise) of the assessee. Therefore, it is evident that finally on 25.01.2006, during the personal hearing, though two months time to reply to the show-cause notice was sought for, the assessee, did not give such reply. On the other hand, an order in Original was passed on 28.02.2006.
18. From the above discussion of facts and circumstances, We are of the firm view that there is no violation of principles of natural justice in this case, as contended by the appellant, insofar as the non-furnishing of the said letter dated 20.01.2001 is concerned.
19. Admittedly, the said letter, dated 20.01.2001 is not available with the Revenue. It is claimed by the assessee that copy of the said letter is also not available with the assessee. We have already pointed out that the said letter with enclosures had emanated only from the assessee and therefore, it is their own document. We have also pointed out that the said letter is nothing but an explanation regarding the alleged short-fall and excess of the fabrics. Therefore, it was for the assessee to give a suitable reply to the show-cause notices, as the contents of the said letter was already discussed by the Commissioner in the show-cause notices itself. Therefore, the assessee is not entitled to contend as if they were not in a position to furnish reply to the show-cause notice without furnishing a copy of the said letter, dated 20.01.2001. Referring a document in the show-cause notice itself need not be construed as though a reliance is also placed by such authority on such document to take an adverse inference against the assessee, unless the show- cause notice itself explicitly expresses so. Referring a document in a show-cause notice does not mean relying upon the same as well, unless such reliance against the assessee is apparently evident on the face of such notice.
20. Even otherwise, the assessee must show and establish that such non-furnishing of a particular document caused them prejudice and that they are prevented from giving an effective reply to the show-cause notice. Certainly, a document which was, either not within the knowledge of the assessee or not emanated from them, if relied on in the show-cause notice, that too, by taking adverse inference against the assessee based on such document, then non-furnishing of such document would certainly result in causing prejudice to the assessee. On the other hand, if such document itself has emanated from the assessee and not from any third party or the Revenue and if the same was also not considered to draw any adverse inference against the assessee to form a prima facie opinion in the show-cause notice, non-furnishing of such document to the assessee itself would not be construed as causing prejudice to the assessee. It is not beyond one's reasonable expectation that an assessee who sent a communication to the Revenue, would certainly retain a copy of the same in their file, especially when the proceedings are going on and not get terminated. If they did not retain a copy of such document or if it is lost from their hand, the assessee has to blame themselves. In this scenario, the question of prejudice does not arise. At the best, it could be treated as prejudice caused by self default or pre-determination and not a prejudice caused at the instance of the Revenue.
21. Next We deal with the maintainability issue raised with regard to the filing of modification application before the Tribunal. Section 35(C) of the Central Excise Act deals with orders of the Appellate Tribunal, which reads as follows:
35-C. Orders of Appellate Tribunal:---(1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
((1-A)The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three time to a party during hearing of the appeal.)
(2) The Appellate Tribunal may, at any time within (six months) from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section(1) and shall make such amendments if the mistake is brought to its notice by the (Commissioner of Central Excise) or the other party to the appeal;
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
((2-A)The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed:
Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section(1) of Section 35-B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:
Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.)
(3) The Appellate Tribunal shall send a copy of every order passed under this Section to the (Commissioner of Central Excise) and the other party to the appeal.
(4) (Save as provided in the National Tax Tribunal Act, 2005), orders passed by the Appellate Tribunal on appeal shall be final.
22. Perusal of the above-said provision would show that, though the Appellate Tribunal has the power to confirm, modify or annul a decision or order appealed against, it is not empowered to modify its own order, except having the power to rectify the mistake apparent from the records, as provided under sub-clause(2) of the above said provision.
23. In order to exercise the power under Section 35-C(2) existence of two ingredients is necessary namely:
1. There must be a mistake committed by the Tribunal in the order.
2. Such mistake must be apparent from the face of records.
Only under those circumstances, the Tribunal can rectify the mistake and amend the order passed by it under sub-section (1) only to correct the mistake. No other provision is available under the above said Act either for reviewing the order or for modifying the same. Needless to state that though power to review includes power to modify, certainly power to rectify the mistake, as contemplated under Section 35-C(2) of the Act, does not mean the power either to review or modify the order itself, that too in the absence of a mistake committed by the Tribunal, which should also be apparent on the face of the records.
24. No doubt, the Revenue sought to rely upon Rule 41 of the said Rules in support of maintainability of the Modification Petition. The said Rule reads as follows:
Rule 41. Orders and directions in certain cases:--The Tribunal may take such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice.
25. We have given our careful consideration to the said Rule. First of all, we would like to point out that statutory rules cannot, either override the provision of law stated in the relevant enactment or empower the authorities to act beyond or over and above the power conferred under the enactment. In the absence of any specific power contemplated under the Central Excise Act, 1944, either to review or to modify the orders, We are of the view that by virtue of Rule 41 alone, the Tribunal is not entitled to review or modify its own order, more particularly, when such modification amounts to review of the order itself. Even otherwise, a careful perusal of the above Rule 41, would only indicate that the Tribunal is empowered to give directions as may be necessary or expedient, only to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. Therefore, the power conferred under Rule 41 is not to override an order already passed and on the other hand, it is like the power to execute the order already passed, in order to give effect to such order or to prevent abuse of its process, for the purpose of securing ends of justice. Therefore, we are of the view that Rule 41 is not helping the Revenue in any manner on the question of maintainability of the Modification Petition. No doubt, it is true that the Tribunal while dismissing the Modification Petition as withdrawn, has given liberty to the Revenue to file Modification petition. In our considered view, the Tribunal constituted under the relevant Law, cannot empower itself beyond the scope and jurisdiction permissible under the provisions of such law. In other words, the power not specifically vested by legislation, cannot be either presumed or assumed by the Tribunal.
26. In 2004(163) ELT 403(SC)(The Commissioner of Central Excise, Vadodra .vs. Steelco Gujarat Limited), the Honourable Supreme Court has considered the scope of rectification of mistake under Section 35-C(2) vis---vis the power to review at paragraph Nos.7 and 8, has observed as follows:
7. The power of review is not an inherent power and must be expressly granted. It has not been so granted under the Central Excise Act to the Tribunal. What has been given is a limited power under Section 35c(2) which provides as follows:
(2) The Appellate Tribunal may, at any time within (six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the (Commissioner of Central Excise) or the other party to the appeal;
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed.''(Emphasis added)
8. Although the ground for rectification, namely, an error on the face of the record may be common to a power for review, the nature of the power to be exercised in the two cases is distinct. The power of review is not limited to rectification and is wider than the power conferred under Section 35C(2)(emphasis supplied)
27. 2009(236) ELT 431 is sought to be relied upon by the appellant to contend that there is no power to condone the delay beyond the period prescribed under Section 35-C(2). We have already discussed that the very application for modification itself is not maintainable and therefore, the question whether it was filed within time or not is immaterial. Hence, the above decision is not applicable to the present facts and circumstances.
28. The learned Senior Panel counsel relied on a decision in 2008(226) ELT 45(Bom) and 2008 (229)ELT 164(SC) in support of his contention that Modification Petition is maintainable before the Tribunal. Perusal of both case laws would show that the Tribunal therein dealt with the application for rectification of mistake. Here, in the case on hand, admittedly the Tribunal dismissed those applications as withdrawn, however by granting liberty to file Modification Petition. We have already pointed out that the Tribunal has no power to grant such liberty as well. Therefore in the absence of any statutory provision empowering the Tribunal to entertain Modification Petition, the above case laws, which are otherwise distinguishable on facts as well, are not helping the appellant in any manner.
29. Next we come to the question of limitation in filing Modification Petition as raised by the appellant. As we find that the very application for modification filed before the Tribunal is the one without any sanctity of Law, the question of considering the limitation in filing such application does not arise.
30. Finally, We have to see as to whether the Tribunal is justified in remitting the matter to the adjudicating authority, in view of our findings rendered supra. In our considered view, the Tribunal ought not to have remitted the matter back to the Adjudicating Authority for considering the matter afresh for the following reasons:
First of all, We have already found that the said letter dated 20.01.2001 was supplied to the assessee along with other documents as per the acknowledgement made by the assessee in his representation on 26.03.2002. Even otherwise, We have also found that non-supply of such document, assuming to be true, itself has not caused any prejudice to the assessee as the said document has emanated from them. After the first remand by the Tribunal through its order dated 06.09.2006, the assessee has filed a reply to the show-cause notice, which is evident from the findings of the second order in Original passed on 21.11.2008 and 27.11.2008, more particularly at paragraph 19 and 9 respectively.
''19. At the time of personal hearing held on 21.4.2008 before the undersigned Shri. M.Ramasubramanian, Manager(Excise) appeared. He requested that MCL either be supplied with a copy of the document(letter, dated 20.1.2001 with enclosures) as directed by the CESTAT or be informed of the non-availability of the same so as to file reply. In this connection, he also gave a written representation. A communication was sent to them on 14.7.2008 informing that, MCL projected before the CESTAT as if a copy of the said letter dated 20.1.2001 was not made available to them; whereas, vide their letter dated 22.6.2002, MCL fairly admitted receipt of copies of all documents relied on in the notice; even if they had misp0laced their copy as stated before CESTAT copies of the said letter with enclosures should have been available with MCL; and therefore they may file reply to the notice. The communication also mentioned the dates on which MCL was free to appear for hearing. At the time of hearing held on 16.09.2008, Shri.S.S.Thakkur, Vice President(Excise and Legal)appeared along with Shri M.Ramasubramanian, Manager(Excise). They filed reply with reconciliation statements. It was argued that there was no evidence to prove clandestine removal and hence, demand made in the notice would not survive. They accordingly, requested for dropping the proceedings.
9. At the time of personal hearing held on 21.4.2008 before the undersigned, Shri M.Ramasubramaniam, Manager(Excise) appeared. He requested that MCL either be supplied with a copy of the document(letter dated 20.1.2001 with enclosures) as directed by CESTAT to be informed of the non-availability of the same so as to file reply. In this connection, he also gave a written representation. A communication was sent to them on 14.7.2008 informing that, MCL projected before the CESTAT as if a copy of the said letter was not made available to them; whereas, vide their letter dated 22.6.2002, MCL fairly admitted receipt of copies of all the documents relied on in the notice; even if they misplaced their copy as stated before CESTAT, copies of the said letter with enclosures should have been available with MCL; and therefore they may file reply to the notice. The communication also mentioned the dates on which MCL was free to appear for hearing. At the time of hearing held on 16.09.2008, Shri.S.S.Thakkur, Vice-President(Excise and Legal) appeared along with Shri M.Ramasubramaniam, Manager(Excise). They filed reply with reconciliation statements. It was orally argued that since there was no evidence for clandestine removal, the proceedings should be dropped.'
Therefore, it is evident that the assessee has already filed their reply to the show-cause notice and contested the matter before the Adjudicating Authority. Thereafter, the Adjudicating Authority has also passed the above orders in Original, dated 21.11.2008 and 27.11.2008. Challenging the same, the assessee filed appeals before the Tribunal which in-turn remanded the matter to the adjudicating authority once-again, without going into the merits of the matter. Therefore, We are of the view that since the Adjudicating Authority has already considered and passed orders on merits also by considering the reply submitted by the assessee, it is for the Tribunal to consider the merits of the matter once-again in the appeal, as admittedly, the Tribunal is also a fact finding authority. Therefore, we are of the considered view that the Tribunal, instead of remitting the matter back to the Adjudicating Authority, ought to have considered the matter on merits and passed an order in the appeal.
31. Accordingly, the Civil Miscellaneous Appeals are allowed and the orders impugned herein are set aside. The matter is remitted back to the Tribunal for hearing the main appeals and passing orders on the same on merits and in accordance with law, as expeditiously as possible, in view of the fact that adjudication proceedings commenced as early as in the year 2001. No costs. Consequently, connected Miscellaneous Petitions are closed.