2013 (11) TMI 79 - AT - Central Excise

Rectification of Mistake Held that - The prayer made by the Department was to allow the appeal and the assessee was represented by their counsel - When the order was dictated in the court and having been present during the relevant time, at this stage pointing out that there is a mistake is not correct - The assessee has a remedy in the form of an appeal before the Hon ble High Court and if this is considered as a mistake and an attempt is made to rectify, it would be amount to review of the order of this Tribunal which the Tribunal has no powers to do - The application for rectification of mistake is rejected Decided against Assessee.

Summary

Issues: Rectification of mistake in the Final Order regarding eligibility for CENVAT credit on MS plates, angles, channels, and penalty imposition.

Analysis:
The judgment pertains to the rectification of a mistake in the Final Order of the Tribunal regarding the eligibility of the assessee for CENVAT credit on specific items and the imposition of penalties. The Tribunal had allowed the Department's appeal against the order of the Commissioner(Appeals) that set aside the demand and penalty on the assessee. The primary issue involved was whether the assessee was entitled to CENVAT credit on MS plates, angles, channels, etc.

The counsel for the assessee argued that the Tribunal failed to consider that the issue was a matter of interpretation, and in such cases, it is established that no penalty should be imposed. It was contended that the Tribunal did not address the issue of penalty, leading to a mistake in the order. However, the Tribunal, in its analysis, found no error in the order. It was noted that the Department's prayer was to allow the appeal, and the assessee was represented by their counsel during the proceedings. The Tribunal considered the submissions made by the assessee's counsel, and since no cross-objection was filed by the assessee, it was deemed inappropriate to claim a mistake at this stage.

The Tribunal emphasized that the decision on whether to impose a penalty was within its purview, and if it had deemed fit not to impose a penalty, it would have been reflected in the order. The Tribunal concluded that the Order-in-Original needed to be restored entirely, as it was done. The assessee was reminded of the option to appeal before the Hon'ble High Court if they disagreed with the decision. The Tribunal highlighted that attempting to rectify the order would amount to a review, which it lacked the authority to perform. Consequently, the application for rectification of mistake was rejected, and the judgment was pronounced and dictated in open court.