The court emphasized the jurisdiction of the Tribunal to rectify its earlier order under Section 35-C(2) of the Act if there was a mistake apparent on the face of the record.

ORDER :

1. The Revenue, being aggrieved by the order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (for short "the Tribunal") has fded the present appeal. By the impugned order the Tribunal has accepted the application filed by the respondent under Section 35-C(2) of the Central Excise Act, 1944 (for short "the Act") seeking rectification of its earlier order dated 13-6-1996 passed in the same appeal on the ground that there was a factual mistake apparent on the face of the record.

2. The issue involved in this appeal is regarding valuation of electric motors classifiable under Tariff Entry 8501.00. The assessec had claimed that it was manufacturing two types of electric motors described as "standard" and "non-standard". The question for consideration is: whether the nonstandard motors could be construed to be different product and consequently different values (sic can be taken) for standard motors and non-standard motors. The Tribunal in its first order had held that the respondents claim was supported on legal basis only without there being any factual data justifying such a claim. It was observed that the respondent had failed to produce evidence to show that the non-standard motors were made to orders of dealers and documents in which the co-relation between the purchase order of the ultimate buyer to the dealer and supply by the respondent to the dealer and the supply in turn to the ultimate buyers were shown.

3. The Tribunal in the impugned order has held that the dealer had in fact produced evidence to show that the non-standard motors were produced by the respondent on the specific orders placed by the dealers duly supported by documents showing the co-relation between the purchase order of the ultimate buyer to the dealer and supply by the respondent to the dealer who ultimately supplied the goods to the buyers. The Tribunal in its earlier order had not considered this evidence which was present on the record. Accordingly, the Tribunal after recording detailed reasons, came to the conclusion that there was a factual mistake apparent on the face of the record and, therefore, the order passed earlier required to be rectified and accordingly rectified the order.

4. The Revenue in the present appeal has put a limited challenge to the impugned order. The Revenues case is that the Tribunal can rectify its earlier order in exercise of its jurisdiction under Section 35-C(2) only if there was a mistake apparent on the face of the record which in the present case was not there. According to the learned counsel for the Revenue the Tribunal erred with material irregularity in exercise of its jurisdiction. He has placed Appeal dismissed Chronological list of cases cited reliance on the judgment of this Court in CCE v. ASCU Ltd., (2003) 9 SCC 230 In the said case this Court took the view that the scope of correction which can be made by the Tribunal under Section 35-C(2) of the Act is limited. It was held that if a decision is based solely on the material which is irrelevant or which could not have been used then possibly it could be said that there is a mistake apparent from the record but, however, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used then it could not be said that there was a mistake apparent on the face of the record in the final decision.

5. We have gone through the first order passed by the Tribunal as well as the impugned order. The Tribunal, in the impugned order, has come to the conclusion that there was a factual mistake committed by the Tribunal while passing the earlier order; that the Tribunal had not considered the material evidence produced by the respondent to show the difference between the standard type of electric motors manufactured by the respondent and other motors described as non-standard motors, which were man