2017 (4) TMI 600 - AT - Central Excise

Rectification of mistake - appellant claims that Since the Tribunal order dated 19-8-16 and the grounds of appeal were not considered there is apparent mistake in the final order dated 13-10-2016 - Held that - there is apparent mistake in the Order dated 13-10-2016. Since against the Order-in-Original whatever demand of duty and penalty was confirmed has been set aside by this Tribunal Order No.A/89440-89441/EB dated 19-8-2016 in Appeal No.E/3886 & 3887/05. Penalty in the present case being consequential to the said demand of duty will not survive, accordingly Order No.A/94266/16/EB dated 13-10-2016 is recalled, and after considering the fact that demand case has been already decided in favor of the applicant, Appeal No.E/1982/06-Mum is allowed - ROM application allowed.

Summary

Issues: Rectification of mistake in the final order regarding confirmation of demand and reduced penalty.

In this case, the applicant filed an application for the rectification of a mistake in the final order dated 13-10-2016. The counsel for the appellant argued that an appeal before the Tribunal had been allowed against the same Order-in-Original, resulting in the confirmation of demand and reduced penalty. The counsel contended that the penalty, being consequential to the demand, should not be sustained. The Tribunal noted that the grounds of appeal and the previous Tribunal order dated 19-8-2016 were not considered while passing the final order, indicating an apparent mistake. As the demand of duty and penalty confirmed in the Order-in-Original had been set aside by the previous Tribunal order, the penalty in the present case was deemed unsustainable. Consequently, the final order was recalled, and the appeal was allowed in favor of the applicant. The Revenue's argument that there was no apparent mistake was dismissed, and the rectification application was granted.

The Tribunal's decision was based on the fact that the grounds of appeal and the previous Tribunal order were crucial pieces of evidence that were not considered during the initial decision-making process. The Tribunal recognized that the penalty was directly linked to the demand of duty, which had already been overturned in the previous Tribunal order. Therefore, the penalty in the present case was deemed unsustainable as it was consequential to the demand that had been set aside. By recalling the final order and allowing the appeal, the Tribunal ensured that justice was served based on the relevant legal precedents and evidence presented during the proceedings.