2008 (8) TMI 771 - AT - Central Excise

Rectification of mistake - Mistake apparent - Non-consideration of a decision which was not relied upon by SDR at the time of hearing of appeal cannot be held to be a mistake

Summary

Issues:
1. Whether the benefit of Section 4(4)(d)(ii) was wrongly extended to the respondent?
2. Whether the decision in the case of M/s. Amrit Agro Industries Ltd. was not considered by the Tribunal?
3. Whether the decision in the case of CCE, Jaipur v. M/s. Dugar Tetenal India Ltd. supports the Tribunal's order?

Analysis:

1. The Tribunal rejected the Revenue's appeal, upholding the findings of the Commissioner (Appeals) that the benefit of Section 4(4)(d)(ii) was wrongly extended to the respondent by treating the entire realization as 'cum-duty-price'. The Tribunal relied on the judgment of the Hon'ble Supreme Court in the case of M/s. Maruti Udyog Ltd. The Revenue contended in the ROM application that the later decision of the Hon'ble Supreme Court in the case of M/s. Amrit Agro Industries Ltd., which went against the Tribunal's decision, was not considered. However, the Tribunal found no mistake in its order requiring rectification.

2. The respondent argued that the failure to consider the decision in the case of M/s. Amrit Agro Industries Ltd. by the Tribunal was not a mistake, as the judgment was available when the Tribunal passed its order, and the Revenue did not bring it to the Bench's attention during the appeal hearing. The respondent also highlighted the decision of the Hon'ble Supreme Court in the case of CCE, Jaipur v. M/s. Dugar Tetenal India Ltd., where the Supreme Court confirmed the Tribunal's decision in the case of M/s. Srichakra Tyres Ltd., reiterating the law declared in the case of Maruti Udyog Ltd. The Tribunal found no grounds for rectification based on the arguments presented.

3. The Tribunal rejected the Revenue's ROM application, concluding that the decisions cited by the parties did not warrant any rectification of its original order. The Tribunal's decision was based on the application of relevant legal principles and precedents, including the judgments of the Hon'ble Supreme Court, which supported the Tribunal's findings. The rejection of the ROM application signifies the finality of the Tribunal's decision in this matter.