1. Application for rectification of a tribunal order that invalidated a show-cause notice based on the mention of an inapplicable provision of law. (Para 2 )
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1996 Supreme(SC) 162
Supreme Court Of India
COLLECTOR OF central EXCISE,calcutta
Versus
PRADYUMNA STEEL Limited
Decided on ; January 19, 1996
The mere mention of an incorrect provision of law in a show-cause notice does not invalidate the exercise of power, provided that the power exercised is available under a different provision of law.
Headnote:
Central Excises and Salt Act, 1944, Sections 11-A and 33 - Rectification of order of the Tribunal- Tribunal had held that the provision mentioned in the show-cause notice being inapplicable, the show cause notice was invalid - The application for rectification made by the Department on the ground that the mere mention of an incorrect provision of law , not sufficient to invalidate the show cause notice- Application rejected - Not proper- Mere mentioning of a wrong provision of law by itself, held not sufficient to invalidate the exercise of that power- Order of the Tribunal set aside- Tribunal directed decide the appeal on merits( paras 3 and 4 )
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Table of Contents
2. Whether the mention of an incorrect provision of law in a show-cause notice is sufficient to invalidate the exercise of power. (Para 2 )
3. The tribunal's rejection of the rectification application was contrary to law as there was a clear error apparent on the face of the order. (Para 3 )
4. Mere mention of a wrong provision of law does not invalidate the exercise of power if such power is available under a different provision. (Para 3 )
5. Order rejecting the rectification application set aside; rectification allowed; main order set aside; tribunal directed to decide the appeal afresh on merits. (Para 4 )
6. Does mentioning an incorrect provision of law in a show-cause notice automatically invalidate the exercise of power?
No, the mere mention of a wrong provision of law is not sufficient to invalidate the exercise of power, provided that the power exercised is available even if under a different provision. (Para 3 )
7. When is a tribunal's order regarding the validity of a show-cause notice considered to have an error apparent on the face of it?
An order contains an error apparent on the face of it when it invalidates a show-cause notice solely due to the mention of an incorrect provision, despite the power being available under another provision. (Para 3 )
( 1 ) LEAVE granted.
( 2 ) AN application for rectification was made by the Department to the tribunal for rectification of its order dated 23/6/1987 deciding the appeal. In the main order, the only relevant part is contained in para 4 thereof, with which alone the other member of the bench expressed his concurrence. In that part of the order, it was held that the provision mentioned in the show-cause noticebeing inapplicable, the show cause notice was invalid and the correct provision to show-cause could not be seen to support the validity of the notice. The application for rectification made by the Department was on the ground that the mere mention of an incorrect provision of law in the show cause notice was not sufficient to invalidate the same and a decision was relied on in support of this proposition to make out the ground of an error apparent on the face of the order. This application has been rejected by the tribunal. Hence, this appeal by special leave.
( 3 ) IT is settled that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. Thus, there is a clear error apparent on the face of the tribunals order dated 23/6/1987. Rejection of the application for rectification by the tribunal was, therefore, contrary to law.
( 4 ) THE impugned order of the tribunal dated 21/12/1989 rejecting the Departments application is, therefore, set aside. This results in the Departments application for rectification being allowed, with the consequence that the main order dated 23/6/1987 passed by the tribunal is also set aside. The tribunal would now proceed to decide the appeal afresh on merits.
( 5 ) THE appeal is disposed of. No costs.
