2018 (2) TMI 1017 - AT - Central Excise

Rectification of mistake - AR defended the impugned order and submitted that under the garb of rectification of mistake application, the applicant wants to review the decision on merits - Held that - there is no error apparent on the face of the record which needs to be corrected under the garb of rectification of mistake application - the Tribunal has a limited power of review. The Tribunal cannot change the decision on merits under the garb of rectification application - ROM application dismissed.

Summary

Issues:
Rectification of mistake in Final Order under Central Excise Act 1944 regarding cenvat credit of service tax on Storage and Warehousing Services received abroad, limitation, and penalty.

Analysis:
The appellant filed applications under Section 35C(2) of the Central Excise Act 1944 seeking rectification of mistakes in Final Order Nos. 21892-21893/2017. The Final Order disallowed cenvat credit of service tax on Storage and Warehousing Services received abroad for storing finished goods abroad, citing the place of removal as the port of dispatch or load port. The applicant also raised concerns about the non-consideration of submissions regarding the invocation of a longer period of limitation and imposition of equivalent penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Central Excise Act.

During the hearing, the counsel for the appellant argued that the Tribunal did not address the contentions on limitation and penalty in the appeal memorandum, asserting that this was an error apparent on the face of the record that could be rectified. The counsel cited several decisions in support of this argument. On the other hand, the learned Assistant Commissioner defended the impugned order, contending that the applicant was essentially seeking a review of the decision on merits under the guise of a rectification of mistake application. The Assistant Commissioner emphasized that the Tribunal had already considered all contentions and provided a well-reasoned finding.

After considering the submissions from both parties, the Judicial Member concluded that there was no error apparent on the face of the record warranting correction through the rectification of mistake application. It was held that the Tribunal's power was limited to rectification and did not extend to changing decisions on merits through such applications. Consequently, the Judicial Member dismissed both rectification of mistake applications filed by the appellant. The operative portion of the Order was pronounced in Open Court on 29/12/2017.