JUDGMENT : S.R Brahmbhatt, J. Heard learned advocates for the parties. As the entire issue was in a very narrow compass, the Court was requested to decide the matter finally so as to avoid the time being consumed for admitting the matter and posting it for final hearing. Accordingly, the matter was taken-up for final disposal. Hence, Rule. Shri Jaimin Gandhi, learned advocate waives service of notice of rule on behalf of the respondent no. 3. By consent, rule is fixed forthwith. 2. The petitioners have approached this Court by way of this petition under Article 226 of the Constitution of India with following prayers. “(A) That Your Lordships may be pleased to issue a writ of Certiorari or any other appropriate writ, order or Direction quashing and setting aside order No.M/10406-10407/2017 dated 14.6.2017 (Annexure-”G” passed by the Appellate Tribunal, Ahmedabad, on E/ROM/10095-10173/2017; (B) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order, directing the Appellate Tribunal, Ahmedabad to decide Application No.E/ROM/10095/2017 filed by the Petitioner herein for correction of a typographical error in final order No.A/11063/2016 dated 29.9.2016 with a further direction and order thereby holding and declaring that this final order No.A/11063/2016 dated 29.9.2016 subsists as regards decision on Appeal No.E/1585/2009 with correction of the above referred typographical error; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Appellate Tribunal from hearing and deciding appeal Nos.E/1585/2009 and E/1483/2010 thereby staying implementation of order No.M/10406-10407/2017 dated 14.6.2017 (Annexure-”G”); (D) An ex-parte ad-interim relief in terms of para 21(C) above may kindly be granted. (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted.” 3. Thus, what is essentially under challenge is the order passed by the tribunal on 14th June 2017 in Application No.E/ROM/10095/2017, E/ROM/10173/2017 in purported exercise of power under Section 35C(2) of the Central Excise Act, 1944 recalling the order dated 29th September 2016, wherein the appeal being Appeal No.E/1585 of 2009 had been allowed on merits. 4. The facts in brief as could be culled-out from the memo of the petition and annexures deserve to be set-out as under in order to appreciate the controversy. 4.1 That the petitioner is engaged in manufacture of HDPE Tapes, which are excisable goods. 4. The facts in brief as could be culled-out from the memo of the petition and annexures deserve to be set-out as under in order to appreciate the controversy. 4.1 That the petitioner is engaged in manufacture of HDPE Tapes, which are excisable goods. The raw materials used by the petitioner are HDPE granules. There was a dispute in past about classification of HDPE Tapes because the trade claimed that the goods were articles of plastic classifiable under Chapter 39 of the Central Excise Tariff, whereas the view of the Revenue was that they were textile goods classifiable under Chapter 54 of the Tariff. 4.2 In view of dispute of classification, the petitioner company paid central excise duty under protest on HDPE Tapes under Chapter 54 Heading 5406.90 The Central Board of Excise and Customs issued a Circular/order clarifying that these goods were classifiable under Chapter 39 of the Tariff, in view of several decisions and judgments holding that HDPE Tapes (and also other goods like HDPE fabrics and bags) were articles of plastic falling under Chapter 39 of the Tariff. The dispute of classification was thus resolved in favour of the trade. The petitioner company filed refund claims which were sanctioned by the Assistant Commissioner, but the amount was ordered to be transferred to the Consumer Welfare Fund on the ground of unjust enrichment. The said appeal against the above order was allowed by the Commissioner (Appeals) who held that the refund claim was not hit by doctrine of unjust enrichment. The refund was paid in the petitioner's favour. The appeal of the revenue before the Appellate Tribunal against the order of the Commissioner (Appeal) was decided by remanding the case to the Assistant Commissioner. After considering the evidence on record, the Assistant Commissioner passed a fresh order and held that the petitioner company had not passed on incidence of duty to the customers and therefore the claim was not hit by unjust enrichment. The revenue's appeal against the above order was rejected. The said order has been accepted by the revenue and it is thus a concluded matter that the petitioner has not passed on the incidence of duty paid under protest to any other person and that the refund claim of the petitioner was not hit by unjust enrichment. The revenue's appeal against the above order was rejected. The said order has been accepted by the revenue and it is thus a concluded matter that the petitioner has not passed on the incidence of duty paid under protest to any other person and that the refund claim of the petitioner was not hit by unjust enrichment. On the petitioner's claim for interest on delayed refund, the Assistant Commissioner passed an adjudication order and sanctioned interest of Rs. 44,28,444/- in view of the provision of Section 11BB of the Central Excise Act for interest on delayed refund. This amount of interest has been paid to the petitioner on 1st May 2008. 4.3 Against the above referred order sanctioning the interest, the revenue had filed appeal, which was allowed by the Commissioner (Appeals), but the Appellate Tribunal remanded the case back to the Commissioner (Appeals) who passed OIA No. 116/2009 and held that the petitioner's claim for interest on delayed refund was not sustainable. On the stay application filed by the petitioner company with a substantive appeal No.E/1585/2009 before the Appellate Tribunal against the above OIA No. 116/2009 of the Commissioner (appeals), a stay order was passed by the Appellate Tribunal granting unconditional stay in view of the prima facie case made out by the petitioner. By this stay order, recovery of Rs. 44,28,444/- paid to the petitioner as interest on delayed refund was stayed. Appeal No.E/1585/2009 involving the above issue was admitted and was pending for final hearing and disposal. 4.4 A show cause notice was issued for recovering the above amount of Rs. 44,28,444/- on which a separate adjudication order was passed by the Joint Commissioner of Central Excise demanding recovery of the amount of interest on delayed refund. This parallel proceeding was only a duplication of the case because recovery of interest paid to the petitioner was ordered by Commissioner (Appeals) vide OIA No. 116 of 2009 dated 27th July 2009. Against the said order, the appeal of the petitioner before the Commissioner (Appeals) was rejected vide OIA No. 192 of 2010. Against the said order, petitioner company filed Second Appeal No.E/1483/2010 with a stay application. Against the said order, the appeal of the petitioner before the Commissioner (Appeals) was rejected vide OIA No. 192 of 2010. Against the said order, petitioner company filed Second Appeal No.E/1483/2010 with a stay application. The stay application was allowed on 8th August 2011 by observing that recovery of amount of interest on delayed refund was the subject matter of the previous appeal No.E/1585/2009 also wherein stay on merits was allowed; and directed the Registry to connect this subsequent appeal No.E/1483/2010 with appeal No.E/1585/2009 for disposal. The appellate tribunal heard Appeal No.E/1585/2009 and allowed the appeal of the petitioner on merits by delivering a detailed judgment by holding that the petitioner was legally entitled to interest on delayed refund in view of Section 11BB of the Act and also because of several judgments rendered by the Courts of Law including the Hon'ble Supreme Court. However, the other Appeal No.E/1483/2010 was not listed with the above referred main appeal and hence this subsequent appeal was not decided along with. As there was a typographical error about a date in the final order dated 29th September 2016, the petitioner company filed an application for rectification of mistake for correcting the typographical error of wrong date. 4.5 The revenue filed an application for rectification of mistake on the ground that the Registry was directed by the appellate tribunal to connect Appeal No.E/1483/2010 with Appeal No.E/1585/2009 for disposal but the Registry had not listed Appeal No. 1483/2010 on 29th September 2016 when Appeal No.E/1585/2009 was heard and decided. For this reason, a prayer was made in the Revenue's Misc. Application for passing appropriate further orders on Appeal No.E/1585/2009. The Appellate Tribunal heard both the applications for rectification of mistake together, and on oral submission of the revenue's representative that the final order passed on Appeal No.E/1585/2009 should be recalled because the other appeal No.E/1483/2010 was not listed together for disposal, the Appellate Tribunal has recalled the final order dated 29th September 2016 by which Appeal No.E/1585/2009 was allowed in the petitioner's favour and this order was made after hearing both the sides and on merits. While recalling the final order made on merits, the Tribunal has observed that both the appeals should be listed for hearing together on 26th July 2017. While recalling the final order made on merits, the Tribunal has observed that both the appeals should be listed for hearing together on 26th July 2017. 4.6 It is settled legal position that the Appellate Tribunal can rectify only a mistake apparent on record, which must be in the nature of typographical or clerical error, or when a submission going to the root of the case was not considered or decided; but a final order passed on merits of the case cannot be recalled only on the ground that the appeal was to be heard with another appeal but the Registry had not placed such other appeal for hearing together with the case which was heard and decided on merits. If there was any error apparent in deciding the appeal and the final order called for any correction because of a typographical or clerical error or the like; then further orders could be made by the appellate tribunal correcting such error in exercise of power conferred under Section 35C(2) of the Central Excise Act. But, when there was no error in rendering the final order on merits after hearing both the parties and it was not even the case of the Revenue that the final order suffered from any error or mistake, the appellate tribunal could not have recalled the whole order only because the Registry had not tagged one more appeal involving the same issue with the appeal which was heard and decided on merits. The power to correct any mistake apparent on record can be exercised only when there was any such mistake in the order made by the Appellate Tribunal, but not because of an error of the Registry, and that too when the only error of the Registry was not putting up two cases together for disposal. 4.7 The only prayer in the Revenue's Misc. Application was to pass appropriate further orders on the appeal which apparently meant that the other appeal which was not put up for hearing with appeal No. 1585/2009 was also required to be decided on the basis of the final order passed on merits of the case; and therefore, the appellate tribunal could not have accepted the oral submission of the Revenue's representative for recalling the final order made on merits of Appeal No.E/1585/2009. The petitioners a grave prejudice by virtue of the impugned order of the Appellate Tribunal because the appeal heard and decided on merits is now ordered to be heard again, and the final order on the appeal passed in the petitioner's favour on merits after a full fledged bi-parte hearing is recalled robbing the petitioner of the fruits of the efforts made by them for a decision on merits in that case. The order of the appellate tribunal recalling the final order made on merits after hearing both the parties on Appeal No.E/1585/2009 is therefore, ex-facie illegal, impermissible and without jurisdiction. 5. Thus, being aggrieved and dissatisfied with the impugned order, the present petition is preferred on the grounds mentioned in the petition. 6. Learned counsel for the petitioners invited Court's attention to the fact that the purport and scope of Section 35C(2) is unfortunately not appreciated by either the department or the tribunal, which has resulted into undertaking the exercise, which was not available to the tribunal to undertake for recalling the order, which was otherwise absolutely just and proper. 7. Learned counsel for the petitioners invited Court's attention to the order passed by the tribunal on the subsequent appeal being Appeal No.E/1483/2010 and submitted that the order for waiver of recovery of so-called erroneous refund made on 8th August 2011 contained a direction to the registry of tribunal for hearing the said appeal along with appeal being Appeal No.E/1585/2009. Unfortunately, when the tribunal was hearing the Appeal No. E/1585/2009 the subsequent appeal being Appeal No.E/1483/2010 had not been listed and the matter being Appeal No.E/1585/2009 came to be disposed of on merits vide order dated 29th September 2016, which was absolutely just and proper order and non-hearing of the Appeal No.E/1483/2010 could not have given any cause of action whatsoever for filing or moving an application under Section 35C(2) of the Central Excise Act, 1944. 8. Learned counsel for the petitioners further submitted that the catena of decisions cited at the bar, which have been listed here-in-below, and the observations made in appropriate paragraphs would indicate that the tribunal could not have embarked upon the exercise of examining the order and recalling the same on an erroneous pleadings of so-called mistake, which could not have been attributed to the tribunal at all. In that view of the matter, he urged the Court that the order dated 14th June 2017 impugned in this petition deserve to be quashed and set aside. 1. Roots Multiclean Ltd. v. CESTAT, Chennai, reported in 2016 (336) E.L.T 25 (Mad.). 2. Commissioner of Income Tax, Banglore v. Mc Dowell and Co. Ltd., reported in 2015 (329) E.L.T (Kar.). 3. CCE, Jaipur v. Hindustan Zinc Ltd., reported in 2015 (318) E.L.T 614 (SC). 4. CCE, Belapur, Mumbai v. RDC Concrete (India) Pvt. Ltd., reported in 2011 (270) E.L.T 625 (SC). 9. Mr. Jaimin Gandhi, learned advocate for the respondent no. 3 invited Court's attention to the order dated 8th August 2011 and submitted that that order was passed by the Division Bench of the tribunal and therefore, the same could not have been overlooked or ignored by the Single Judge Bench, which was rendering the decision on 29th September 2016 in Appeal No.E/1585/2009 and therefore, the error which was apparent on the face of record was required to be rectified and therefore, the department was justified in allowing the application under Section 35 C (2) of the Central Excise Act, 1944. 10. Learned advocate for the respondent no. 3 invited Court's attention to the decision of Bombay High Court in case of Conwood Pre-Fab Pvt. Ltd. v. Union of India, reported in 2008 (224) E.L.T 37 (Bom.) with specific emphasis on paragraph nos. 2 and 4 and submitted that the error apparent on the face of record would clothe the tribunal with a power to review and recall an order and therefore, the order dated 8th August 2011 was not taken into consideration by the tribunal while passing the order in Appeal No.E/1585/2009 and therefore, to that extent the same was erroneous when the error was rectified and order of tribunal was recalled, there was no mistake whatsoever, which was giving any rise to file a petition under Section 226 of the Constitution of India. 11. We have heard learned counsel for the parties and perused the proceedings. 11. We have heard learned counsel for the parties and perused the proceedings. The provision of Section 35C(2) of the Central Excise Act, 1944 require to be set-out as under:— Section 35C(2) The Appellate Tribunal may, at any time within 2[six months] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the 3[Commissioner of Central Excise] or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 4[(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.] 12. The plain and simple reading thereof would clearly reflect that the tribunal does not have any power to review the order and the purport and scope of Section 35C(2) of the Central Excise Act, 1944 is limited to rectifying the mistake only and that too the error or mistake apparent on the face of record. This provision is not required to be so enlarged as to clothe the tribunal with the power of reviewing its own order, which otherwise is conspicuous lacking in the statutory provision of the Central Excise Act. 13. The Court is of the considered view that the entire application, which was made in the month of March 2017 in which the department sought to rectify the mistake of tribunal was completely misconceived and not tenable in eye of law. 13. The Court is of the considered view that the entire application, which was made in the month of March 2017 in which the department sought to rectify the mistake of tribunal was completely misconceived and not tenable in eye of law. There was, therefore, no cause of action whatsoever for allowing the application, which would have given no jurisdictional facts to the tribunal for exercising any power under Section 35C(2) of the Central Excise Act. Hence, the order passed by the tribunal on the application recalling the order dated 29th September 2016 is patently erroneous and not tenable in eye of law and is required to be quashed and set aside else it would amount to exercise the review power, where there was no pleadings whatsoever qua the merits or any error apparent on the contention and/or reasoning of the order, which is dated 29th September 2016 allowing the Appeal No.E/1585/2009. The Court hastened to add here that these are the observations only to examine the order under challenge and it would have no bearing whatsoever upon the contention of the department on merits of the order, in case if it chooses to challenge the same in appropriate proceedings. Suffice it to say that the said proceedings can never be the proceedings under Section 34C(2) of the Central Excise Act, 1944, as it was sought to be made-out by the learned advocate for the revenue at the bar. W are of the considered view that the entire exercise was palpably erroneous and unfortunate, which has resulted into giving rise of proceedings under Section 226 of the Constitution of India, the application as well as, this petition and therefore, the same needs to be severely deprecated. 14. The Court is of the view that for the aforesaid reasons, the order impugned i.e. order No.M/10406-10407/2017 dated 14th June 2017 passed by the Appellate Tribunal, Ahmedabad on E/ROM/10095-10173/2017 deserves to be quashed and set aside and accordingly the same is quashed and set aside. As a result thereof, the order dated 29th September 2016 would stand restore to the file and any observations made hereinabove shall have no effect upon any challenge to the same, if taken-up by the revenue in the appropriate forum in appropriate proceedings, as in this petition there was no scope for examining the said order on its merits. Rule made absolute. Rule made absolute. However, there shall be no order as to costs.