2008 (2) TMI 290 - HC - Central Excise

Revenue appeal against dismissal of Rectification of Mistake application by Tribunal - Since the issue of time bar was not agitated by the Revenue before First Appellate Authority, they are precluded from raising the issue before the Tribunal - revenue has failed to show that there is any mistake apparent on the record - no substantial question of law arises revenue appeal dismissed order of tribunal is correct

Summary

Issues:
1. Whether the Tribunal's order can be considered complete when all grounds of appeal were not considered?
2. Whether duty was paid twice on the same goods, and if so, is the refund justified?
3. Whether the time bar issue was raised and considered by the authorities in the appeals process?

Analysis:
1. The appeal was filed by the Department-revenue under Section 35G of the Central Excise Act against an order passed by the Customs, Excise & Service Tax Appellate Tribunal. The main issue raised was whether the Tribunal's order can be deemed complete when all grounds of appeal were not considered. The Tribunal had dismissed the appeal of the revenue, stating that duty cannot be paid twice on the same product. Subsequently, the revenue filed a rectification application, claiming a mistake apparent on the record regarding the time bar issue not being considered. However, the Tribunal dismissed the rectification application, emphasizing that the revenue had not raised the time bar issue before the First Appellate Authority or the Tribunal, precluding them from doing so at a later stage.

2. The respondent-assessee had cleared goods for export under bond, and duty was paid by both the manufacturer and the merchant exporter, resulting in double payment for the same goods. The respondent filed for a refund, which was allowed by the adjudicating Authority. The Commissioner (Appeals) and the Tribunal upheld the decision that duty cannot be paid twice on the same product, leading to the dismissal of the revenue's appeals. The Tribunal's order was based on the established principle that duty cannot be levied twice on the same goods.

3. The revenue contended that the time bar issue was not considered by the authorities during the appeals process. However, upon review, it was found that the revenue had not raised the time bar aspect before the First Appellate Authority or the Tribunal. The Tribunal's order highlighted that since the revenue did not challenge the time bar issue at earlier stages, they were precluded from raising it at the Tribunal level. The Tribunal concluded that there was no mistake apparent on the record regarding the time bar issue and dismissed the rectification application.

In conclusion, the High Court found no merit in the revenue's arguments and upheld the Tribunal's decision to dismiss the rectification application. The Court determined that the revenue failed to demonstrate any mistake on the record or provide substantial support for their contentions. Consequently, the Court dismissed the appeal, stating that no substantial question of law arose in the case.