2010 (1) TMI 354 - AT - Central Excise

Cenvat Credit- Revenue is seeking rectification of mistake in the order of the Tribunal on the ground that the Kissan Cooperative Sugar Factory Ltd. v. CCE, Meerut 2008 (226) E.L.T. 196 (Tri. - Del.) decision is not relevant and there is no necessity of classification of waste and scrap arising out of used capital goods for the purpose of sub-rule (5A) of Rule 3 of Cenvat Credit Rules, 2004. Held that-in the light of the various decisions rectification of mistake cannot be made. Thus, there is no merit in application for rectification of mistake and accordingly reject the same.

Summary

Issues:
Rectification of mistake in the order regarding classification of waste and scrap arising from used capital goods for the purpose of sub-rule (5A) of Rule 3 of Cenvat Credit Rules, 2004.

Analysis:
The Revenue sought rectification of mistake in the Tribunal's order, arguing that the decision in Kissan Cooperative Sugar Factory Ltd. v. CCE, Meerut is irrelevant, and there is no need for classification of waste and scrap from used capital goods under sub-rule (5A) of Rule 3. The Member (T) noted that determining the amount equal to the duty leviable requires classification, as different types of capital goods may attract varying duty rates when disposed of as waste. The Member emphasized that without classification, the duty rate cannot be determined, and accepting the rectification application would essentially amount to a review of the order.

Further Analysis:
The Revenue also relied on the Tribunal's decision in Hindustan Zinc Ltd., which opined that there is no requirement for the classification of waste and scrap. However, the Advocate for the Respondent cited precedents such as Gujarat Plastics Industries v. CCE, Rajkot, CCE, Mumbai v. Pan Asia Corporation, and CCE, New Delhi v. Manish Fabricators & Allied Products to argue that the omission of citing a decision cannot be a basis for rectification of mistake. The Member agreed with this position, stating that just because a particular Tribunal decision was not presented during the hearing, it does not warrant rectification of mistake.

Conclusion:
After considering the arguments and precedents presented, the Member found no merit in the application for rectification of mistake regarding the classification of waste and scrap from used capital goods. Consequently, the application was rejected, and the original order of the Tribunal stood.