CESTAT | If the issue was not argued during hearing and while dictating the order in the open court, can it be raised later for rectification? Tribunal answers

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Ashok Jindal (Judicial Member) and P.V. Subba Rao (Technical Member) dismissed an application which the Revenue had filed for rectification of mistake on the ground that while entertaining the appeal, this Tribunal had dismissed the appeal filed by the Revenue without considering the fact that the process of digitations of data was also a process of manufacture or not?

Authoritative representative submitted that the adjudicating authority had erred in holding that the process of digitations of data was also a process of manufacture on which this Tribunal had not given any finding.

Counsel for the respondent submitted that during the course of hearing AR was present in the Court and the order had been dictated by this Tribunal in the open court. There was no argument made by AR for the said issue, therefore, there is no merit in the application for rectification of mistake.

The Tribunal observed that the fact that order was dictated by this Tribunal in the open court and the issue with regard to the process of digitations of data was also a process of manufacture was not argued is not in dispute. The Tribunal further relied upon the judgment of the Tribunal in Hindustan Zinc Ltd., 2015 (318) ELT 614 (SC) and quoted,

“This appeal is preferred against the order dated 6th September, 2002 passed by Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as

“CEGAT‟ for short) in the rectification application which was preferred by the Department. By the said order, the CEGAT has dismissed the application with the observations that the issue raised in the rectification application was not argued at the time of hearing of the main case. This aspect could not be disputed by the learned senior counsel appearing for the Department.

Having regard to the above, we do not find any error in the order dated 6th September, 2002 passed by CEGAT.”

The Tribunal finally dismissed the applications holding that the issue was not argued at the time of hearing and while dictating the order in the open court, thus there is no mistake apparent on record.[CCE & ST v. NIIT GIS Ltd., 2021 SCC OnLine CESTAT 2582, decided on 24-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

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