IN THE  SUPREME COURT OF INDIA                 CIVIL  APPELLATE  JURISDICTION                                   CIVIL APPEAL NO.            D.23763 OF 2008   

 Commnr. of Central Excise-II, Thane ..   Appellant(s)

                    Versus

Daisy Trading Corporation ..   Respondent(s)                                                           O R D E R

Delay condoned.

This appeal by the revenue under Section 35L(B) of the Central Excise Act,

1944 (‘the Act’ for short) is directed against order dated  21st February, 2008 passed

by the Customs, Excise & Service Tax Appellate Tribunal,  West  Zonal Bench,  at

Mumbai  (for  short  ‘the  Tribunal’).   By  the  impugned  order,  the  Tribunal  has

dismissed the application preferred by the revenue for rectification of its final order

No.A/514/2007/C-I(EB) dated 23rd July,2007, which is not questioned in this appeal.

The  application  for  rectification  was  preferred  by  the  revenue  on  the

ground  that  in  the  light  of  the  order  dated  23rd August,  1991  passed  by  the

Commissioner of Central Excise,  inter-alia, holding that the subject goods, namely,

canvas cloth and tarpaulin cloth fall for classification under Chapter heading 52.07

of Schedule II to CETA, 1985, a mistake apparent from the record had crept in the

order of  

..2/-

: 2 :

the  Tribunal,  requiring  rectification.  Rejecting  the  application,  the  Tribunal  has

come  to  the  conclusion  that  the  stated  ground  cannot  be  said  to  be  a  mistake

apparent from the record, falling within the ambit of Section 35(c)(2) of the Act,

inasmuch as the subject goods falling under both the headings, viz., 52.07 and 52.08

are not leviable to basic excise duty as the levy of such duty is exempt and the said

goods are leviable only to additional duty of excise,  for which confiscation is not

permissible.

Be that as it may, apart from the fact that the scope of Section 35(c)(2) of

the Act is very limited, the finding of the Tribunal that there is no mistake apparent

from the record in its order dated 23rd July, 2007 is a pure question of fact, giving

rise to no question of law requiring consideration by this Court.

The Civil Appeal is dismissed accordingly.

                                       ...................J.            [ D.K. JAIN ]  

                                       ...................J.                                     [ R.M. LODHA ]                         

NEW DELHI, MARCH 16, 2009.