2000 (9) TMI 1068 - AT - Central Excise

Summary

Issues Involved:
1. Whether a subsequent decision of the Tribunal or a High Court or the Supreme Court can form the basis for rectification of mistake u/s 35C(2) of the Central Excise Act, 1944.
2. Eligibility for the benefit of Notification No. 40/85 for ammonia used in the manufacture of molten urea.
3. Alternative plea for exemption under Notification 217/86.

Summary:

Issue 1: Subsequent Decision as Basis for Rectification
The primary issue referred to the Larger Bench was whether a subsequent decision of the Tribunal or a High Court or the Supreme Court could form the basis for rectification of a mistake u/s 35C(2) of the Central Excise Act, 1944. The Tribunal examined various judgments from High Courts and the Supreme Court to determine if subsequent judicial pronouncements could be considered a mistake apparent from the record.

The Tribunal found that in cases under the Income-tax Act and Wealth-tax Act, rectification has been allowed based on subsequent decisions if no further investigation on facts was required and the principle of the decision could be straightaway applied. However, the Tribunal concluded that while such principles apply to decisions from the High Court or Supreme Court, they do not apply to subsequent decisions of the Tribunal itself. Therefore, a subsequent decision of the Tribunal cannot form the basis for rectification of a mistake u/s 35C(2).

Issue 2: Eligibility for Notification No. 40/85
The appellants, engaged in the manufacture of fertilizers and chemicals, claimed the benefit of Notification No. 40/85 for ammonia used in the manufacture of molten urea, which is further used in the production of melamine. The Tribunal initially upheld the denial of this benefit, relying on its earlier decision in 1991 (56) E.L.T. 257. However, on the same day, the Supreme Court reversed the Tribunal's earlier decision, holding that the benefit of Notification No. 40/85 was available for ammonia used in the manufacture of molten urea, a chemical fertilizer, even if the final product, melamine, was not a fertilizer.

Issue 3: Alternative Plea for Notification 217/86
The Tribunal had remanded the matter to the Assistant Collector to examine the assessees' prayer for the benefit of Notification 217/86. However, with the Supreme Court's decision favoring the assessees for Notification No. 40/85, the alternative plea for Notification 217/86 became redundant as both notifications could not co-exist.

Final Decision:
The majority of the Tribunal held that a subsequent decision of the Tribunal or a High Court or the Supreme Court cannot form the basis for an application for rectification of mistake u/s 35C(2) of the Central Excise Act, 1944. Consequently, the ROM application was rejected.