2009 (10) TMI 794 - AT - Central Excise

Summary

Issues involved: Application for rectification of mistake u/s 35C(2) of the Central Excise Act regarding erroneous final order passed ex parte, admissibility of MODVAT credit, and time limit for disposal of ROM application.

Rectification of Mistake Application: The appellant contended that the final order passed ex parte was erroneous as it did not address the issue of whether refund of MODVAT credit unnecessarily reversed by the assessee was admissible without unjust enrichment. The appellant argued that the appeal was not against denial of MODVAT credit but the rejection of a refund claim. The appellant cited the requirement under Section 35C(2) of the Central Excise Act for disposal of ROM applications within six months from the date of the order.

Preliminary Objection: The learned SDR raised a preliminary objection regarding the time limit for disposal of ROM applications under Section 35C(2) of the Central Excise Act. The SDR argued that the period of six months was for amending the final order if it is vitiated by an apparent mistake. The SDR referred to relevant decisions and contended that the Tribunal could make amendments if satisfied that the order contained a mistake.

Legal Precedent: The appellant contested the objection by referring to a Supreme Court judgment related to rectification of mistake applications under the Income-tax Act. The appellant highlighted the similarity between the provisions of the Income-tax Act and the Central Excise Act regarding rectification of mistakes. The appellant argued that the Supreme Court ruling supported the jurisdiction of the Tribunal to dispose of such applications beyond the prescribed period.

Decision: The Tribunal overruled the objection raised by the SDR and allowed the application for recalling the final order and reopening the hearing on the appeal. The Tribunal agreed with the appellant that the issue to be considered was the admissibility of the refund claim without unjust enrichment, not the MODVAT credit. The appeal was scheduled for a fresh hearing on a specified date as requested by the appellant's counsel.