2017 (4) TMI 320 - AT - Central Excise

Rectification of mistake - the decision in Para 4.1 of the said order is based on the explanation to Section 35F as is existed prior to 6-8-2014 when the term duty demanded included the interest payable. In the instant case the definition of Section 35F as is existed after 6-8-2014 is applicable and therefore the arguments made in Para 4.1 of the order do not hold good. There has been another error made by the applicants in their appeal memorandum. While no penalty is in dispute in the prayer made in their appeal memorandum, they have approached the Tribunal to set aside interest and penalties, apparently this leads the error in the order. ROM disposed off by making necessary rectification.

Summary

Issues Involved:
1. Error in reproducing Section 35F in the order dated 3-6-2016.
2. Incorrect approach in the appeal memorandum regarding interest and penalties.

Analysis:

Issue 1: Error in reproducing Section 35F
The Appellate Tribunal noted that an error was made in the order dated 3-6-2016 regarding the reproduction of Section 35F. It was pointed out that the Section 35F reproduced in the said order was the version prior to 6-8-2014, which included interest payable within the definition of "duty demanded." However, post 6-8-2014, an amendment was made to Section 35F, excluding interest payable from the definition. The Tribunal found that the decision based on the old explanation to Section 35F was not applicable to the current case, as the definition had been modified post 6-8-2014. Therefore, the arguments made in the order were deemed invalid in light of the correct Section 35F definition.

Issue 2: Incorrect approach in the appeal memorandum
Another error highlighted was in the appeal memorandum submitted by the applicants. It was observed that while no penalty was under dispute in the prayer made in the appeal memorandum, the applicants sought to set aside both interest and penalties. This discrepancy in the approach of the applicants led to an error in the order. Consequently, the Tribunal modified the order dated 3-6-2016, specifically replacing paragraphs 4, 4.1, and 5 with the correct interpretation of Section 35F. The modified order clarified the deposit requirements concerning duty and penalties before filing an appeal, as per the amended Section 35F post 6-8-2014. As there was no demand for duty or penalty in the instant case, and the dispute solely pertained to interest, the need for any pre-deposit was eliminated, leading to the discharge of the notice issued to the appellant. The miscellaneous application was disposed of accordingly.