The court clarified the power of the Tribunal to recall its order and discussed the doctrine of merger in relation to appeal delays.

( 1 ) TRIBUNAL is correct in holding that two pleas mentioned in Ground 2 and Grounds 5 to 9 in the applicants appeal before it were not pressed by the applicant (Para 6 and 7 of the Tribunal s order m/80/01/nb (SM ).)

( 2 ) APPEAL before the Commissioner (Appeals) should be treated to have been filed in time treating the date 16/12/97 as the date of filing the same as it was filed in the office of the Assistant Commissioner Central excise, Div -V: an officer sub-ordinate to commissioner (Appeals) in so far as appeals are concerned - on that date (Para 2 of Tribunals final order no. A/2180/00-NB (SM) dt. 17/10/2000 ).

( 3 ) THE question on merits regarding correctness of availing the modvat credit on capital goods by the applicant was validly before the Tribunal, on the basis of the doctrine of merger, and the Tribunal was duty bound to deal with this question in the appeal before it, even if the appeal before Commissioner (Appeals) was treated to be barred by time as has been held by the authorities below. (Para 4 of tribunal s order no. M/80/01 dt. 09/03/2001 and para 2 of Tribunal s final order no. A/2180/00-NB (SM)dt. 17/10/2000 ).

( 4 ) TRIBUNAL has the power to recall its final order no. A/2180/00-NB (SM) dt. 17/10/2000 and pass a fresh order, in exercise of its power under section 35c (2) to rectify the mistakes apparent from the record, since the mistakes are to go to the root of the case and the rectification of the mistake can not be made otherwise than by recalling its earlier order.

( 5 ) IN other words, whether the law laid down by Larger bench of the Tribunal in 2000 (118) ELT 77-Para 9 is valid in all facts and circumstances including the facts and circumstances of this case (para 7 and 8 of tribunal s order M/80/01 NB (SM) dt. 09/03/2001. Signature of Advocate (P. C. Jain)"

( 6 ) THE fact of the matter, which is required to be noticed, is as follows: the applicants purchased one injection-moulding machine (Windsor model) with screw assembly and tool kits from M/s DGP Windsor India Ltd. , Bombay. The goods were cleared under cover of invoice no. 0189/95 dated 18 06. 95. The goods were consigned through M/s Chaudhary Roadlines Corporation vide their consignment note dated 18/06/95. Due to some trouble en route, the transporter delivered the goods in two parts. Main machine was delivered on 30/06/95 but the screw assembly was delivered a few days earlier. The Applicant submitted a declaration under rule 57 T to the Assistant Commissioner with intimation to the Superintendent Central Excise of the concerned range to this effect. Applicant also requested for condonation of delay in submission of the declaration as a part of the goods had been received earlier. Due to clerical mistake, the date of receipt of capital goods both in the declaration and intimation was indicated as 18/06/1995, which was in fact the date of invoice. The capital goods were duly accounted for in RG23c Part-1 and credit of duty was taken on 30/06/95 to the tune of Rs. 147000. 00 in RG23c Part- II. Range Superintendent issued a demand show- cause notice bearing C. No. CE/20/d/rmc/r-26/95/1397 dated 11/10/95 proposing to deny and recover the modvat credit of Rs. 147000. 00 alleging late submission of the prescribed declaration on 30/06/95 where in the capital goods had been declared to have been received on 18/06/1995. Applicants submitted a reply to the above demand show- cause notice on 16/11/1995 explaining that inadvertently the date of the invoice had been mentioned as the date of receipt of goods. Thus the applicants requested for dropping the show-cause notice. Applicant s submission was not accepted by the Assistant commissioner of Central Excise who confirmed the demand of Rs. 1,47,000. 00 and directed recovery of the said amount. He also imposed a penalty of Rs. 20000. 00 vide his order-in-original no. 87/97-98 dated 17/10/1997. Aggrieved against the above order-in- original dated 17/10/1997, Applicant filed on 16/12/1997 an