Appeal to Appellate Tribunal—Grounds urged in Memorandum of Appeal but not advanced during the course of submission or arguments— No error apparent on face of order of Tribunal : Central Excise Act, 1944 Section 35C(2):

Against the final order of the CESTAT, the appellant had filed an appeal before the Supreme Court u/s. 35G of the Central Excise Act, 1944. The appellant also filed an application for rectification 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 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. Hence the appellant preferred an appeal before the Hon’ble High Court.

The appellant submitted that the Tribunal was duty bound to consider and deal with every grounds urged in the Memorandum of Appeal even though these were not raised or advanced during the course of the submissions.

The Hon’ble Bombay High Court observed that 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, the 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 canvas 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. Therefore, the appeal against the rectification order was dismissed, holding that there was no error apparent on the face of the order of the Tribunal.