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2013 (3) TMI 478 - AT - Central ExciseRectification of mistake (ROM) u/s 35C(2) of the Central Excise Act, 1944. - Appellant submitted that the ground of erroneous calculation of duty by the department has also not been considered by the Tribunal and the Tribunal erroneously confirmed the demand as per the Order-in-Original, which is incorrectly calculated. He also submitted that without considering the ground of revenue neutrality, the penalty under Section 11AC cannot be imposed on them. Reliance has been made on the case of Commissioner of Income Tax v. Ramesh Chandra Modi 2000 (7) TMI 8 - RAJASTHAN High Court . Held that - Tribunal find that in the present case the points raised in the ROM application were not urged by the applicant at the time of hearing of the application and in their written submissions submitted on the date of hearing. The issue relating to the Rectification of Mistake under Section 35C(2) of the Central Excise Act, 1944 was examined by the Hon ble Supreme Court in the case of Commissioner of Central Excise, Belapur, Mumbai v. RDC Concrete (India) Pvt. Ltd. reported in 2011 (8) TMI 25 - SUPREME COURT OF INDIA and observed that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In view of the observation of the Hon ble Supreme Court, Tribunal find that the application for ROM filed by the applicant is not sustainable.
Issues:
Rectification of mistake under Section 35C(2) of the Central Excise Act, 1944. Analysis: 1. The applicant, M/s. Rashtriya Chemicals & Fertilizers Ltd., sought rectification of a mistake in the order passed by the Tribunal. The applicant contended that certain grounds mentioned in the appeal memorandum were not considered by the Tribunal, leading to an error apparent on the face of the record. 2. The applicant argued that the Tribunal, being a fact-finding authority, should have considered all grounds raised in the memorandum of appeal. The applicant emphasized the concept of revenue neutrality under Central Excise law, stating that if duty payable is available as Cenvat Credit for discharging duty on the final product, it constitutes a revenue-neutral situation. The applicant claimed entitlement to Cenvat Credit for duty payable on Naphtha used in manufacturing non-fertilizer products. 3. The applicant further contended that the Tribunal failed to consider the ground of erroneous calculation of demand and the imposition of penalty under Section 11AC without considering the aspect of revenue neutrality. The applicant cited relevant judgments to support the argument that omission of considering grounds raised in the appeal memorandum amounts to a mistake apparent from the record. 4. On the contrary, the Addl. Commissioner for the Revenue argued that the points raised by the applicant did not constitute apparent mistakes in the impugned order. The Revenue contended that mis-declaration by the applicant regarding the use of goods for fertilizer manufacturing invalidated the claim for Cenvat Credit. Additionally, the Revenue maintained that the applicant's mis-declaration precluded challenging the time limitation and penalty imposition under Section 11AC. 5. The Tribunal noted that the applicant did not raise the grounds mentioned in the rectification of mistake (ROM) application during the hearing or in the written submissions. Consequently, the Tribunal held that the applicant could not later claim that those points were not considered during the order's passage. 6. The Tribunal distinguished the applicant's reliance on certain judgments by emphasizing that in those cases, the arguments were addressed before the Tribunal, unlike in the present case where the grounds were not raised during the hearing. The Tribunal highlighted the importance of raising relevant points during the hearing for them to be considered in the final decision. 7. Ultimately, the Tribunal rejected the ROM application, citing the principle that a mistake apparent on record must be obvious and patent, not requiring a lengthy process of reasoning. The Tribunal found that the grounds raised by the applicant were not considered due to the applicant's failure to present them during the hearing, leading to the rejection of the rectification request. Conclusion: The Tribunal denied the rectification of mistake application filed by M/s. Rashtriya Chemicals & Fertilizers Ltd., emphasizing the importance of raising relevant grounds during the hearing for consideration in the final decision. The Tribunal held that the alleged mistakes were not apparent on record and did not meet the criteria for rectification under Section 35C(2) of the Central Excise Act, 1944.
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