2013 (8) TMI 646 - AT - Central Excise

Rectification of mistake in the order - Assessee over the period of 13 years did not take note of or considered whether there was a case on merit or not and was fighting the case on a technical ground that there was no recovery mechanism and there was never a whisper about merits. Even when the impugned order was passed the only submission made by the assessee was that the show-cause notice was time barred Held that - The issue on merit was never raised - This ground of merit is being raised only in the application for rectification of mistake. As regards proceedings for recovery for the year 2001, the matter is before us in the first round of litigation. But even in this case merit was never an issue. The issue was only limitation and whether there was a provision for recovery in the law or not - The assessee seems to be seeking rectification of mistakes committed by Original Authority, First Appellate Authority and by this Tribunal on six occasions - This cannot qualify as a mistake apparent from the records at all Decided against the Assessee.

Summary

Issues:
Rectification of Tribunal's order based on notifications and legal precedents; Background and history of the case; Interpretation of Finance Act, 2005 provisions; Time-barred show-cause notices; Lack of merit in rectification application.

Analysis:
1. The Respondent sought rectification of the Tribunal's order based on notifications and legal precedents indicating that the Cenvat Credit need not have been reversed for specific periods. The Respondent relied on the Supreme Court's decisions and argued that the Tribunal's decision contradicted settled law, necessitating rectification due to an apparent error from the records.

2. The background and history of the case revealed that demands for certain periods were disputed, leading to Tribunal orders allowing appeals on the grounds of absence of a recovery mechanism in the law. The enactment of provisions in the Finance Act, 2005 addressed the recovery issue, with show-cause notices being issued subsequently. However, some notices were deemed time-barred, leading to appeals by the Revenue.

3. The Commissioner's rejection of demands based on limitation and retrospective amendments was challenged, highlighting the lack of consideration for the extended period invocation. The Commissioner's decisions focused on limitation without delving into the merits, leading to a uniform treatment of demands by the Commissioner.

4. The Tribunal noted that the Respondent consistently based their defense on the absence of a recovery mechanism, not on the merits, throughout the prolonged litigation spanning over 13 years. The Tribunal questioned the rectification application's merit, considering the lack of merit-based arguments raised by the Respondent in multiple proceedings.

5. Despite the purpose of dispute redressal being justice, the Tribunal emphasized the Respondent's failure to address the case on merit over the extended litigation period. The Tribunal observed the reversal of amounts by the Respondent even after a favorable decision by the Commissioner, indicating a lack of belief in the case's merit as late as 2011.

6. Ultimately, the Tribunal concluded that any mistake in the order was not apparent or committed by the Tribunal. Given the lack of merit-based arguments and the Respondent's prolonged focus on technical grounds, the Tribunal rejected the rectification application, emphasizing the absence of a mistake warranting rectification based on the records.