2010 (8) TMI 805 - AT - Central Excise

Summary

Issues:
1. Imposition of penalty for wrong availment of credit.
2. Rectification of Mistake (ROM) application filed by the appellant.
3. Jurisdiction of the Commissioner (Appeals) to rectify mistakes in the Tribunal's order.

Analysis:
1. The appellants imported a ship for breaking and availed input credit for bunker and fuel, which was reversed upon Revenue's notification. Penalty proceedings were initiated resulting in an order imposing a penalty of Rs. 3 lakhs, later reduced to Rs. 1 lakh by the Tribunal. The appellants filed a ROM application seeking to set aside the penalty, which was directed to the Commissioner (Appeals) for consideration. The Commissioner (Appeals) rejected the ROM application as not maintainable. The Tribunal concurred, stating that the Commissioner (Appeals) lacked the jurisdiction to rectify any mistake in the Tribunal's order, which had finally disposed of the appeal and reduced the penalty.

2. The Tribunal found that directing the appellant to file the ROM application before the Commissioner (Appeals) was a mistake, as the penalty reduction by the Tribunal rendered the order-in-appeal passed by the Commissioner (Appeals) merged with the Tribunal's order. Since the mistake, if any, was in the Tribunal's order, the appellant should have filed the ROM application before the Tribunal. The Tribunal noted that the appellant did not seek rectification of the mistake apparent on the face of the records. Consequently, the Commissioner (Appeals) rightfully rejected the ROM application seeking further reduction of the penalty, as the Tribunal's decision to reduce the penalty to Rs. 1 lakh had been final.

3. The Tribunal emphasized that the Commissioner (Appeals) lacked the authority to rectify any mistake in the Tribunal's order, especially after the penalty had been reduced by the Tribunal. The order-in-appeal passed by the Commissioner (Appeals) was deemed to have merged with the Tribunal's order, leaving no grounds for rectification by the Commissioner (Appeals). The Tribunal acknowledged the error in directing the appellant to file the ROM application before the Commissioner (Appeals) and rejected the application, affirming that the penalty reduction to Rs. 1 lakh had been conclusively decided by the Tribunal.

In conclusion, the Tribunal upheld the rejection of the ROM application by the Commissioner (Appeals) and rejected the appellant's plea for further reduction of the penalty, as the Tribunal's decision reducing the penalty to Rs. 1 lakh had already been finalized.