2018 (7) TMI 405 - AT - Central Excise

Rectification of Mistake application - case of applicant is that the Tribunal while passing the order failed to consider the High Court and Tribunal decisions as referred to by them - Held that - The facts and circumstances of the present case are totally different from the case laws relied upon by the Ld. Counsel for the assessee - It is well settled law that the preceding value of the case law would be adjudicated on the facts of the said case. There is no substance in the ROM Application filed by the assessee - ROM Application dismissed.

Summary

Issues:
1. Rectification of mistake in final order dated 27.12.2017 by the Tribunal.
2. Consideration of High Court and Tribunal decisions by the Tribunal.

Rectification of Mistake in Final Order:
The applicant filed a Misc. Application for Rectification of Mistake in the Final Order passed by the Tribunal. The Tribunal noted that the Commissioner of Central Excise disallowed the Cenvat Credit, which the assessee later reversed but took again after several years. The Commissioner(Appeals) allowed the credit, but the Tribunal upheld the disallowance. The Tribunal directed the assessee to pay a penalty of 25% of the Cenvat Credit within 30 days. The applicant contended that the Tribunal failed to consider relevant High Court and Tribunal decisions. However, the Tribunal found no merit in the applicant's argument and dismissed the application.

Consideration of High Court and Tribunal Decisions:
The applicant cited two cases - ICMC Corporation Ltd. and Coromandal Fertilizers Ltd. In the ICMC case, the High Court observed that a refund claim under the Central Excise Act was not necessary. In the Coromandal case, the Tribunal held that when the law is settled on an issue, credit cannot be denied based on the delay in availing it. The Tribunal in the present case noted that the assessee had reversed and retaken credit after a significant delay. Referring to the BDH Industries Ltd. case, the Tribunal emphasized that there is no provision for suo motu credit without the Proper Officer's approval. The Tribunal concluded that the facts of the present case differed from the cases cited by the applicant, and hence, dismissed the Rectification of Mistake Application.

This judgment highlights the importance of timely compliance with legal procedures and the significance of precedent in determining the outcome of cases related to Cenvat Credit disallowance.