2018 (8) TMI 1387 - AT - Central Excise

Rectification of mistake - Power to tribunal to rectify the mistake apparent from record - refund claim - Held that - The Tribunal has passed the order on the premises that the said amount has been paid by the manufacturer buyer. It is a fact on record that the applicant has paid the amount from their own account - the said amount has been paid by the appellant from their own account as per the direction of Hon ble Additional Session Judge, New Delhi. The provisions of Section 35C(2) of the Central Excise Act, 1944 gives the power to the Tribunal to modify the order if there is mistake apparent from the record while passing the order - Admittedly, while passing the order, the amount paid by the appellant from their own account has been escaped the attention. Therefore, the mistake is required to be rectified and order to be modified. ROM Application allowed.

Summary

Issues: Rectification of mistake in the order passed by the Tribunal

Analysis:
The applicant filed applications for rectification of mistake in the order passed by the Tribunal on 20.04.2015. The dispute arose from the recording in the order that certain amounts paid by M/s AMCo & AMCorpn. during the investigation were not refundable. The applicant contended that they had paid the disputed amount from their own account on behalf of various manufacturer/buyers, as directed by the Hon'ble Additional Session Judge. The applicant argued that since cenvat credit was available to the manufacturer-buyer, the amount should be refundable to them. The AR opposed this, stating that the duty had been paid on behalf of the manufacturer and therefore was not refundable. The Tribunal found that the amount had indeed been paid by the applicant from their own account, as per the direction of the Hon'ble Additional Session Judge, and that the manufacturer-buyer was entitled to cenvat credit. The Tribunal held that the order needed modification to rectify the mistake apparent on record.

The Tribunal noted that the provisions of Section 35C(2) of the Central Excise Act, 1944 empowered them to modify the order if a mistake was apparent from the record. In this case, it was evident that the amount paid by the appellant from their own account had been overlooked while passing the order. Therefore, the Tribunal concluded that the mistake needed rectification, and the order required modification. Consequently, para 16 of the order was modified to allow cenvat credit to manufacturer buyers and to render the demand of duty along with interest unsustainable. Penalties on manufacturer buyers were deemed not imposable. Para 17(c) was also amended to state that the amount paid by M/s AMC's during the investigation could be refunded if requested. The miscellaneous applications filed by the applicants were thus disposed of accordingly.