2008 (7) TMI 832 - AT - Central Excise

Issues Involved:
1. Recording of facts regarding the erasing and re-painting of jars.
2. Consideration of documents relied upon for erasing and re-painting.
3. Knowledge of the Department regarding the clearance of unbranded Vanaspati.
4. Proof from daily stock account regarding branded and unbranded vanaspati.
5. Typographical error in the quantity of vanaspati in the order.

Detailed Analysis:

1. Recording of Facts Regarding the Erasing and Re-painting of Jars:
The appellant argued that the recording of the fact that the erasing of the jar for re-painting to exhibit that the jars were used for unbranded vanaspati was not pleaded for the first time, was incorrect. The Tribunal found that the appellant did not provide sufficient proof to demonstrate the availability of jars for the clearance of 152.115 MT of unbranded vanaspati during April 2003 when the levy was introduced on branded vanaspati. The Tribunal maintained that the facts recorded in the earlier order were correct and uncontroverted.

2. Consideration of Documents Relied Upon for Erasing and Re-painting:
The appellant contended that documents available at pages 36 and 37 of the Paper Book, which were relied upon for the erasing and re-painting, deserved consideration. The Tribunal held that fresh evidence, which was never before the authorities below, was not entertainable at a belated stage. Therefore, the documents in question did not call for any consideration.

3. Knowledge of the Department Regarding the Clearance of Unbranded Vanaspati:
The appellant claimed that the clearance of unbranded Vanaspati was within the knowledge of the Department through the monthly return ER-1 for April 2003, which was not considered. The Tribunal found that the appellant failed to prove from its daily stock account by clearly demarcating entries showing branded and unbranded vanaspati produced and cleared during the impugned period. The Tribunal's order emphasized that the appellant did not account separately for the stock of branded and unbranded jars with respective evidence.

4. Proof from Daily Stock Account Regarding Branded and Unbranded Vanaspati:
The appellant argued that the recording of the fact that it had failed to prove from its daily stock account clearly demarcating entries showing branded and unbranded vanaspati was not correct. The Tribunal reiterated that the appellant failed to provide any proof to support the availability of jars for the clearance of unbranded vanaspati. The Tribunal's findings in the order dated 19-7-2007 remained uncontroverted, and the appellant's failure to provide clear demarcation in its daily stock account was upheld.

5. Typographical Error in the Quantity of Vanaspati in the Order:
The appellant pointed out a typographical error in para 3.3 of the order, where 181.180 MT was mentioned instead of 18.180 MT. The Tribunal acknowledged this typographical error and clarified that the correct quantity should be read as 18.180 MT. The Tribunal ordered the rectification of this typographical error, stating that the error was apparent and did not require a long-drawn process of reasoning.

Conclusion:
The Tribunal concluded that the appellant's application for rectification of mistakes was largely unsubstantiated except for the correction of the typographical error in para 3.3 of the order. The Tribunal emphasized that Section 35C(2) of the Central Excise Act, 1944, does not confer the power of review but allows for the rectification of errors apparent on the face of the record. The appellant's grievances were dismissed, and the order was amended only to correct the typographical error.

(Pronounced in the open court on 18-7-2008)

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