2018 (7) TMI 1781 - AT - Central Excise

Rectification of Mistake - case of appellant is that the non consideration of the above main arguments constitutes an error apparent on the Tribunal requiring rectification - Held that - There is no discussion about the arguments advanced by the appellant that demand is time barred and further that the appellant may not be liable to imposition of any penalty. The attention has been drawn to the written submission placed on record wherein the submissions as regard time bar as well as penalty have been raised. Inasmuch as the same does not stand discussed by the Tribunal in the final order, the same amounts to a mistake on the part of the Tribunal. ROM application allowed.

Summary

Issues:
Rectification of mistake in Final Order No. 50790/2018 regarding rejection of appeal and upholding demand. Consideration of arguments on time bar and penalty imposition. Application of extended period of limitation under Section 11A.

Analysis:
The appellant filed an application for rectification of mistake in the Final Order No. 50790/2018, where the appeal was rejected, and the demand was upheld. The appellant argued that the demand confirmed by invoking the extended period of limitation in Section 11A was not sustainable and that no penalty should be imposed. The Tribunal's final order did not address these arguments, leading to the conclusion that there was an error apparent on the part of the Tribunal requiring rectification.

The appellant cited various case laws to support their argument that the demand was not sustainable by invoking the extended time limit. The appellant also referred to a CBEC circular stating that the extended period would not be available in such cases. However, the Revenue justified the impugned order, stating that the Tribunal had considered all arguments before passing the final order, and re-adjudicating the matter would amount to a review of the Tribunal's decision.

Upon review, the Tribunal found that the arguments regarding time bar and penalty imposition were not discussed in the final order, even though they were raised in written submissions. Consequently, the Tribunal allowed the Rectification of Mistake Application to consider and decide the issue on limitation. The Tribunal inserted paragraphs after para 10 of the Final Order, listing case laws supporting the argument against invoking the extended period of limitation and the non-imposition of penalty.

After considering the submissions and case laws, the Tribunal concluded that the extended period of limitation was correctly invoked due to the assessee's failure to determine the correct transaction value and inform the Department, leading to the charge of suppression of facts. Therefore, the Tribunal rejected the argument that the demand was time-barred and upheld the invocation of the extended period under Section 11A.

In the modified order, the Tribunal renumbered para 11 as para 14 and allowed the Rectification of Mistake, thereby addressing the issues raised by the appellant regarding the time bar and penalty imposition. The judgment was pronounced on 25.07.2018.