2005 (11) TMI 359 - AT - Central Excise

Summary

Issues: Rectification of mistake application regarding Cenvat credit admissibility and penalty imposition.

In this case, the applicant filed a rectification of mistake application concerning Final Order Nos. 1088-1091/2005 passed by the Tribunal. The Original Authority had disallowed Cenvat credit for inputs/capital goods used in mines, ordering recovery and imposing a penalty under Rule 13 of Cenvat Credit Rules, 2002 and Section 11AC of the Central Excise Act, 1944. The first appellate authority partially allowed the credit up to a certain date but set aside the penalty. The department appealed only the credit portion, not contesting the penalty setting aside. However, the Tribunal, in the Final Order, set aside the entire Order-in-Appeal, including the penalty aspect, which was not before the Tribunal. The Tribunal acknowledged a mistake in setting aside the penalty that was not contested, leading to the revival of the penalty. The Tribunal allowed the rectification of mistake application, recognizing the error in its decision.

The learned Advocate for the applicant argued the case, highlighting the discrepancies in the Original Authority's decision and the subsequent orders regarding Cenvat credit admissibility and penalty imposition. The learned DR for the revenue did not strongly oppose the rectification of mistake application. The Tribunal carefully reviewed the case records and concluded that a mistake was indeed made by setting aside the Order-in-Appeal in its entirety. The Tribunal noted that the penalty, which was not contested and set aside by the Commissioner, was erroneously revived by the Tribunal's decision, even though it was not the subject matter before the Tribunal. Therefore, the Tribunal allowed the rectification of mistake application to correct the error in its judgment, ensuring that the penalty issue not contested before the Tribunal remains unaffected by the decision.