2019 (3) TMI 1494 - AT - Central Excise

Rectification of Mistake - main plank of the ROM application is that although the issue of invocation of extended period of limitation was raised, the same had not been considered in the impugned Order - Held that - There is no error in the first place which is apparent on the face of record and admittedly, in the peculiar facts of the case, the dispute regarding invoking larger period was undoubtedly debatable, hence going into a decided issue is tantamount to revision, for which, we lack jurisdiction. This is also in conformity with Section 35C(2) of the Central Excise Act, 1944. There is no mistake apparent on record which requires rectification, as provided in Section 35C (2) of the Central Excise Act, 1944 - ROM application dismissed.

Summary

Issues:
Rectification of Mistake (ROM) application seeking to rectify the mistake in the Final Order passed by the Tribunal dated 21.08.2018.

Analysis:
The appellant argued that the demand beyond the normal period of one year was invalid as the Show Cause Notice was issued after a significant delay. They contended that they had sold goods under proper documents and paid sales tax, and their transactions were reflected in financial records. The appellant cleared goods without duty payment based on a genuine belief in exemption due to confusion during the disputed period. The appellant emphasized that these points were raised in their appeal before the Tribunal.

The appellant invoked Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, along with Section 35C (2) of the Central Excise Act, 1944, to request rectification or recall of the order for re-hearing. They cited various case laws to support their arguments.

On the contrary, the respondent opposed the ROM application, stating that Section 35C (2) of the Act did not permit the Tribunal to recall orders in such cases. The respondent highlighted the appellant's suppression of information to evade duty payment as discussed in the adjudication Order.

The Tribunal examined the arguments and found that the appellant consciously processed soap stock to produce acid oil and soap sludge, indicating that the emergence of acid oil was not unintended. Consequently, the Tribunal upheld duty liability on acid oil but considered soap sludge as 'waste' and non-excisable. The penalty under Section 11AC of the Act was set aside due to confusion regarding the excisability of by-products. The Tribunal concluded that the plea of limitation lacked merit based on the discussions leading to the demand liability on acid oil.

The Tribunal rejected the appellant's reliance on case laws, emphasizing that rectification requires a patent error, not a debatable fact. The Tribunal noted the debatable nature of the issue regarding the extended period of limitation and concluded that there was no apparent error requiring rectification. The dismissal of the ROM application was based on the lack of jurisdiction to revise decided issues and in accordance with Section 35C(2) of the Central Excise Act, 1944.

In summary, the Tribunal dismissed the ROM application on 22.02.2019, stating that no mistake apparent on record required rectification, given the debatable nature of the issue and lack of jurisdiction for revision.