2023 (5) TMI 1332 - AT - Central Excise

Application for Rectification of Mistake (ROM) - errors apparent on the face of record - demand confirmed on the ground that the Appellants were using machines for the purpose of stitching and hence travelled beyond the scope of show cause notice - HELD THAT - The Adjudicating authority has examined the decision of the Hon ble Supreme Court in the case of COLLECTOR OF CENTRAL EXCISE, NEW DELHI VERSUS LOUIS SHOPPE 1995 (3) TMI 108 - SC ORDER and given a finding in the Order-in-Original regarding the applicability of that decision in the present case. The Tribunal also examined the submissions made by the Appellant and given a finding in respect of the issue on merits. The Tribunal has also given a finding regarding the reasons for invocation of extended period. After examining all these issues the Final Order was issued by the Tribunal. A perusal of the decision clearly indicate that for considering the ROM, the discovery of the mistake must not require a long process of reasoning. If an issue raised by the Appellant has not been discussed at all in the Order by the Tribunal, then only such an error can be rectified under an ROM. In this case the two grounds raised by the Appellants have been discussed in the Final Order of the Tribunal. If a submission has been made by the Appellant and it was not examined by the Adjudicating authority, then the Tribunal can go into that issue and find out whether the Adjudicating authority was right in taking the decision. The remedy available to the Appellant is only to file an appeal against the order before the superior appellate forum and not an ROM for rectifying the mistake. In view of the above discussion, these issues raised by the Appellant cannot be rectified under this ROM Application. Accordingly, the ROM filed by the Appellant, is dismissed.

Summary

Issues involved: Application for Rectification of Mistake (ROM) against final Order, invocation of extended period for demanding duty, non-payment of duty known to Department, reliance on Board's Circular, applicability of Supreme Court decision, challenge to Tribunal's order, consideration of limitation issue, jurisdiction of Tribunal under Section 35C(2) of the Act, rectification of mistakes apparent from the record.

Summary:
1. The Appellant filed an Application for Rectification of Mistake (ROM) against the final Order passed by the Tribunal, arguing that the Adjudicating authority exceeded the scope of the Show Cause Notice by confirming the demand based on machine usage for stitching. The Appellant contended that the non-disclosure of machine usage did not amount to suppression of fact, and hence, the extended period for demanding duty should not have been invoked. The Appellant also referenced a Supreme Court decision and a Circular issued by the Board in support of their case, seeking rectification u/s 35 C (2) of the Central Excise Act, 1994.

2. The Appellant further argued that they had declared non-payment of duty in accordance with the Board's Circular, and since the Department was aware of this, there was no suppression involved. However, the Show Cause Notice issued beyond the normal period of one year rendered the demand unsustainable.

3. The Appellant cited various case laws in support of their arguments, while the Authorized Representative for the department emphasized that the decision of the Supreme Court had been duly considered by the Adjudicating authority and the Tribunal, and any challenge should be through an appeal rather than a ROM application.

4. After hearing both sides and examining the records, the Tribunal found that the errors cited by the Appellant did not qualify as 'Errors apparent on the record' under Section 35C(2) of the Act. The Tribunal emphasized that revising these errors would amount to modifying the order itself, which was not permissible under the Act.

5. The Tribunal dismissed the ROM filed by the Appellant, stating that the issues raised had been discussed and considered in the Final Order, and the remedy available was to file an appeal before the superior appellate forum rather than seeking rectification through ROM.

6. In conclusion, the Tribunal held that the issues raised by the Appellant could not be rectified under the ROM Application, and therefore, the ROM was dismissed.