Rashtriya Chemicals and Fertilizers Ltd. vs Union of India

This appeal arises from a decision of the CESTAT dated 16 July, 2012 2012 (286) ELT 610 on an application for rectification that was filed u/s 35C(2) of the Central Excise Act, 1944. The Tribunal has rejected the application filed by the appellant. Against the final order of the Tribunal dated 27 March, 2012, the appellant has filed an appeal before the Supreme Court u/s 35G of the Central Excise Act, 1944. An application for rectification was filed before the Tribunal on the ground that certain grounds that were raised in the Memorandum of Appeal were not dealt with in the order of the Tribunal. While rejecting the application, the Tribunal has noted that neither in the oral submissions nor in the written submissions that were tendered to it during the course of the proceedings, were any submissions advanced with reference to those grounds. For convenience of reference, we extract hereinbelow the relevant paragraphs of the order of the Tribunal dismissing the application for rectification:

We also note that at the time of hearing, the applicant has submitted the written submissions and in those written submissions the points raised in the ROM application were also not taken by the applicant during the course of the hearing. That means that the applicant himself has not raised those grounds at the time of argument and now once the order is passed, they cannot contend that those points were not considered by the Tribunal while passing the order.

We find that the issues raised in the application were not urged and argued by the applicant at the time of personal hearing and the applicant himself was not considering these issues as important issues.

We find that the grounds taken in the ROM application were not argued before the Tribunal at the time of personal hearing.

The submission of Counsel appearing on behalf of the appellant is that the Tribunal is duty bound to consider and deal with every one of the grounds urged in the Memorandum of Appeal even though these are not raised or advanced during the course of the submissions. We do not find any merit in the submission. The Tribunal is indeed duty bound to address those grounds which are placed in issue, during the course of the oral arguments. Where in a given case, in the considered exercise of a professional judgment of Counsel appearing on behalf of the Appellant--in this case learned Senior Counsel--Counsel has not considered it appropriate to raise certain grounds during the course of the oral submissions, it would be unreasonable to expect that the Tribunal must nonetheless deal with all those grounds which are raised in the Memorandum of Appeal. The grounds in the Memorandum of Appeal may as contemporary experience shows, cover a broad canvass of the draftsman, who may seek to raise every possible ground of challenge. Which ground of challenge should actually be pressed before the Tribunal is a matter which lies in the exercise of the professional judgment of Counsel appearing on behalf of the contesting party. No fault can be found with the Tribunal because it has not addressed a submission which was not advanced at the hearing of the appeal before the Tribunal. In the present case, even before this Court, it is an admitted position that what has been recorded by the Tribunal in the extract noted earlier, is the correct record. The Tribunal has noted at more than one place that the ground on which the application for rectification was moved, was not advanced either in the oral submissions or for that matter, in the written submissions. We, therefore, do not find any merits in the appeal.

However, Counsel appearing on behalf of the appellant relied upon a decision of the Supreme Court in Chattisgarh Vidyut Mandal Abhiyanta Sangh Vs. Chattisgarh State Electricity Regulatory Commission and Another, . In that case, as observed by the Supreme Court, the Tribunal had framed two specific issues, but had not dealt with the questions so framed. The judgment is, therefore, clearly distinguishable. Similarly in the judgment of a Division Bench of this Court in Abhay Industries Vs. Union of India, , the Division Bench had noted the submission that most of the contentions which have been urged in the written submissions that were filed in respect of the arguments advanced before the Tribunal had not been considered. It was in that view of the matter that there was a remand. Similarly, in the judgment of a Division Bench of the Karnataka High Court in Commr. of S.T. Vs. Yokogawa Blue Star Ltd., , it was held that the Tribunal committed an error in not considering the ground urged by the appellant before it. In the circumstances, in the present case, the impugned order of the Tribunal declining to entertain the application for rectification does not suffer from any error. There was no error apparent on the face of the order of the Tribunal which would have justified the exercise of the jurisdiction u/s 35C(2) of the Central Excise Act, 1944. We however, clarify that since the appeal against the original order of the Tribunal has now been filed before the Supreme Court, we have not expressed any opinion on the merits of the issues which have been dealt with in the order of the Tribunal. The appeal, therefore, does not disclose any substantial question of law. The appeal is accordingly dismissed.