2008 (5) TMI 572 - AT - Central Excise

Rectification of mistake - error apparent on the face of record - Binding decision not cited/considered - maintainability of appeal

Summary

Issues:
1. Dismissal of appeal by the Commissioner of Central Excise, Trichy.
2. Challenge to the order of the Commissioner (Appeals) regarding refund.
3. Whether refund can be made in cash or through Cenvat account.
4. ROM petition filed by the Revenue against the final order.
5. Consideration of legal precedents in passing the final order.
6. Application of the principle of per incuriam and error apparent on the face of the record.

Analysis:
1. The Appellate Tribunal dismissed an appeal filed by the Commissioner of Central Excise, Trichy, deeming it devoid of merit. The Commissioner (Appeals) had reversed the original authority's decision and allowed a refund of Rs. 4,36,678.56 in cash, whereas the original authority had only allowed Rs. 3,11,679/- by crediting the amount to the Cenvat account of the respondent. The Tribunal's decision was based on the precedent set in CCE, Bhopal v. Bombay Burma Trading Corporation Ltd., allowing refund in cash when the assessee no longer had a Cenvat account due to ceasing manufacturing operations.

2. The Revenue filed a ROM petition against the final order, citing the decision in Gauri Plasticulture (P) Ltd. v. Commissioner of Central Excise, Indore, which held that a refund in cash could not be granted if it enriched the assessee without any cash duty payment during the dispute period. The Revenue also referred to Hindustan Lever Ltd. v. CCE, Mumbai, emphasizing the importance of considering binding precedents to avoid errors in judgments.

3. During the hearing, the Revenue argued that the Tribunal erred by not considering the binding order in Gauri Plasticulture (P) Ltd. case, which had settled the legal position contrary to the Division Bench's decision followed by the Tribunal. The consultant for the respondents contended that the order was passed following settled legal principles and could not be reviewed based on subsequent contradictory decisions.

4. The Tribunal acknowledged that it failed to consider the binding authority of the Larger Bench decision in Gauri Plasticulture (P) Ltd. case, leading to an error in the final order. The principle of per incuriam was applied, allowing the Revenue's ROM petition. The Tribunal cited the Fuerst Day Lawson Ltd. case, emphasizing that orders passed without considering binding authorities could be reviewed as errors apparent on the face of the record.

5. In conclusion, the Tribunal recognized the error in the final order due to non-consideration of the binding precedent, leading to the allowance of the ROM application by the Revenue. The case was scheduled for further hearing to address the issues raised.

This detailed analysis highlights the legal complexities and considerations involved in the judgment, focusing on the application of legal precedents and principles in reaching a decision.