2010 (8) TMI 788 - AT - Central Excise

Summary

Issues Involved:
1. Mistake apparent from the record.
2. Refund claim barred by limitation under Section 11B of the Central Excise Act, 1944.
3. Applicability of Rule 233B of the erstwhile Central Excise Rules, 1944.
4. Treatment of deposits made during investigation as duty.
5. Jurisdiction and scope of rectification under Section 35C(2) of the Central Excise Act, 1944.

Detailed Analysis:

1. Mistake Apparent from the Record:
The appellant filed an application under Section 35C(2) of the Central Excise Act, 1944, stating that there was a mistake apparent from the Final Order No. 1641/08-SM passed on 28-11-2008. The appellant argued that the Tribunal failed to consider the law laid down in the case of Mafatlal Industries v. Union of India, which states that deposits made during investigations are not governed by Section 11B of the Act. The Tribunal, however, found that there was no apparent mistake in its order as the appellant did not demonstrate how its case was covered by the Mafatlal judgment during the original hearing.

2. Refund Claim Barred by Limitation:
The Tribunal recorded that the rejection of the appellant's refund claim was based on the fact that the duty was paid between 22nd February 1999 and 28th August 1999, while the refund claim was filed on 8-9-2005, which was beyond the one-year limitation period prescribed under Section 11B of the Act. The appellant's argument that the amount paid during the investigation should be treated as a deposit and not as duty was not accepted, as all refund claims are governed by Section 11B, and the claim was rightly rejected for being time-barred.

3. Applicability of Rule 233B:
The Revenue contended that the appellant did not follow the procedure of payment of duty under protest as required by Rule 233B of the erstwhile Central Excise Rules, 1944. The Tribunal held that there was no evidence on record to show that the appellant made a formal protest regarding the deposit before adjudication. Therefore, the appellant was required to follow the provisions of Section 11B for claiming a refund.

4. Treatment of Deposits Made During Investigation:
The appellant argued that the amount deposited during the investigation should be treated as a deposit and not as duty, relying on the Supreme Court's judgment in Mafatlal Industries. However, the Tribunal found that the appellant's deposit was made voluntarily towards duty of excise consequent to audit objections and was not under protest. The Tribunal held that deposits made during investigations are subject to the provisions of Section 11B, including the limitation period and unjust enrichment.

5. Jurisdiction and Scope of Rectification:
The Tribunal emphasized that the power to rectify mistakes under Section 35C(2) is limited to correcting mistakes apparent from the record and does not extend to reviewing or revising the entire order. The Tribunal cited various judgments, including those of the Supreme Court, to underline that a mistake must be obvious and patent, not something that requires elaborate arguments or detailed examination of records. The Tribunal concluded that the appellant's application for rectification was an attempt to seek a review of the original order, which is not permissible under the law.

Conclusion:
The Tribunal dismissed the appellant's application for rectification of the mistake, holding that there was no apparent mistake in the original order. The Tribunal reiterated that all refund claims are governed by Section 11B of the Central Excise Act, 1944, and the appellant's claim was rightly rejected for being time-barred. The Tribunal also clarified that its power under Section 35C(2) is limited to rectifying patent mistakes and does not include the authority to review or revise its decisions.