2012 (12) TMI 345 - AT - Central Excise

Application for rectification of mistakes cenvat credit - plea of the appellant is that Whytheat - C Special, Fire Crete, Air Compressor, Spare Parts for Compressor, Air Cylinder, Spare Impeller, Grate Bar, Grate Plate, Fork Lifter Truck and Lifting Chain were the items covered by the definition of the term - capital goods Held that - Modvat credit in respect of the above-mentioned items was disallowed on the ground that Clauses (d) & (e) to Rule 57Q were inserted for the first time by Notification No. 11/1995-C.E. (N.T.), dated 16-3-1995 and being so, the same cannot be applied to this case - appeal is restored to its original number. The ROM is allowed.

Summary

Issues:
Rectification of mistakes apparent from record regarding Modvat credit on certain items of capital goods.

Analysis:
The appellant, a manufacturer of cement chargeable to Central Excise duty, availed Modvat credit on certain items of capital goods. A show cause notice was issued for the recovery of allegedly wrongly taken Modvat credit. The original Adjudicating Authority confirmed the demand, which was partly allowed by the Commissioner (Appeals). The appeal was filed against the order of the Commissioner (Appeals). The Tribunal dismissed the appeal upholding the order. The appellant filed a Rectification of Mistakes (ROM) application based on the ground that the Tribunal did not consider the Larger Bench judgment in the case of CCE, Indore v. Surya Roshni Ltd. According to the appellant, the items in question were covered by the definition of capital goods as per the Larger Bench judgment. The Tribunal found that there was a mistake apparent from the record as the plea regarding the Larger Bench judgment was not considered. Consequently, the Final Order was recalled, and the appeal was restored to its original number. The ROM was allowed.

The appellant argued that the items in question were covered by the definition of capital goods as per the Larger Bench judgment, even though they were specifically brought within the definition by a later notification. The appellant relied on the judgment in the case of CCE, Indore v. Surya Roshni Ltd. to support their claim. The Tribunal acknowledged that the appellant's plea had been made but was not considered in the Final Order. The Tribunal found a mistake apparent from the record in not considering the appellant's argument based on the Larger Bench judgment. Consequently, the Final Order was recalled, and the appeal was restored.

In conclusion, the Tribunal allowed the Rectification of Mistakes application filed by the appellant regarding the Modvat credit on certain items of capital goods. The Tribunal recognized the mistake apparent from the record in not considering the appellant's argument based on the Larger Bench judgment. As a result, the Final Order was recalled, and the appeal was restored to its original number.