V.T. Raghavachari, Member (J)

1. E-Appeal No. 1157/81-D of M/s. Neelam Tin Industries was dismissed under Order No. D-438/85 dated 11-12-85. The appellants have filed the present application under Section 35C(2) of the Central Excises and Salt Act According to them their case would be covered by Notification No. 97/84-CE dated 23-4-84 issued by the Central Government under Section 11C of the Central Excises and Salt Act, 1944 and that a copy of the said notification was filed by them on 9-12-85 bringing to the attention of the Tribunal the said notification but that without the same being taken into account the order dated 11-12-85 had been passed. According to them there has, therefore, been an error apparent from the record in the order dated 11-12-85 and therefore the said error is to be rectified.

2. We have heard Shri P.N. Avasthi, Advocate for the applicants/ appellants and Shri Vineet Kumar for the Deptt.

3. In this case arguments in the appeal had been heard on 14-10-1985 and the orders had been reserved. Thereafter one of the Members had prepared the order dismissing the appeal and signed the same on 7-11-85. Subsequently, the other two Members had, while concurring that the appeal should be dismissed, written a separate order and signed the same on 11-12-85. Shri Vineet Kumar submits that since arguments had been heard and orders had been reserved on 14-10-85 itself the subsequent events such as filing by the appellants of the Notification No. 97/84 dated 23-4-84 would not, even if the same had not been taken into consideration, amount to an error apparent from the record. On the other hand, Shri Avasthi contends that the notification having been filed in the Tribunal on 9-12-85 itself, when the order disposing of the appeal had not been issued, the Tribunal ought to have taken into consideration the said notification also before passing its final order and since it had failed to do so there is an error apparent from the record.

4. On a perusal of the records it is seen that the applicant had filed in the registry on 9-12-85 an application accompanied with a copy of Notification No. 97/84 and raised the contention that in view of the said notification the appeal of the appellants required to be allowed, irrespective the acceptability of the other contentions earlier raised. But unfortunately the Registry had failed to bring this application to the notice of the Bench, though by 9-12-85 no order had been issued disposing of the appeal. In the circumstances the contention raised by the appellants as evidenced by an application filed by them for that purpose was on the records but the appeal had been disposed of without reference to that contention. In that sense we feel that there was an error apparent from the record and that in view of that error the order already issued needs to be reconsidered.

5. But then the next question is whether even taking into consideration the contention raised on the basis of Notification No. 97/84 the order finally issued would require any modification. The notification read as follows :

"In exercise of the powers conferred by Section 11C of the Central Excises and Salt Act, 1944 (1 of 1944) the Central Government, being satisfied that according to a practice that was generally prevalent regarding levy of duty of excise (including non-levy thereof), the duty of excise leviable under Section 3 of the said Act on metal containers, falling under Item No. 46 of the First Schedule to the said Act, when these metal containers were produced by the manufacturer thereof without the aid of power from sheets which had been tinned, printed, coated or lacquered by others with the aid of power, was not being levied under the Notification of the Government of India in the Ministry of Finance (Department of Revenue and Insurance) No. 94/70-CE, dated the 1st May, 1970 during the period commencing on the 1st May, 1970 and ending with the 18th February, 1977, hereby directs that the whole of duty of excise