2009 (12) TMI 479 - AT - Central Excise

Appeal -Merger - Rectification of Mistake - An order passed by Apex Court in its appellate jurisdiction either by reversing modifying or confirming the order of lower authority would result in merger of order of lower court or lower authority in the order of Apex Court irrespective of fact as to whether such order of Apex Court is a speaking order or a non-speaking order. Ground relates to failure on part of Tribunal to impropriety of Commissioner s direction to produce the document which the Commissioner was already in possession. Once the applicant had approached the Supreme Court against such order and having tried to get it set aside it is not permissible for applicant thereafter to approach this Tribunal under the guise of rectification of order and to seek de novo hearing of appeal.

Summary

Issues Involved:
1. Eligibility for Cenvat credit on inputs used by M/s. Super Fine Packaging.
2. Reduction of duty demand by excluding the duty on exported goods.
3. Alleged mistake apparent on the face of the record by the Tribunal in its previous order.

Detailed Analysis:

1. Eligibility for Cenvat Credit on Inputs Used by M/s. Super Fine Packaging:
The applicants contended that if the value of clearances of M/s. Super Fine Packaging (SFP) is clubbed with the value of clearance of M/s. Box & Carton India Pvt. Ltd., they should be eligible to claim Cenvat credit of Rs. 12,74,311/- for the duty paid on various inputs used by SFP. They argued that they had provided invoice-wise details of the credit available to them as Annexure-60 to the Memorandum of Appeal. The Commissioner had rejected this claim on the grounds that the applicants failed to prove the duty-paid inputs were used in the manufacture of finished goods. The applicants argued that the invoices were seized by the department under a panchnama, and thus, the Commissioner could have verified them.

2. Reduction of Duty Demand by Excluding the Duty on Exported Goods:
The applicants further submitted that SFP had exported goods valued at Rs. 36,29,012/- involving excise duty amounting to Rs. 5,80,642/- during the relevant period. They argued that the duty demand should be reduced by this amount. They enclosed relevant documents evidencing the export of finished goods as Annexure-61. The Tribunal allegedly rejected these submissions without referring to the evidence and material provided.

3. Alleged Mistake Apparent on the Face of the Record by the Tribunal:
The applicants filed for rectification of the alleged mistake apparent on the face of the record, asserting that the Tribunal had not considered the evidence provided in Annexure-60 and Annexure-61. They argued that the Tribunal's final order dated 24-4-2008 should be rectified to order the Commissioner to verify the invoices for Cenvat credit and the export documents to exclude the value of export goods from the aggregate value of clearance.

Tribunal's Consideration and Decision:

On Eligibility for Cenvat Credit:
The Tribunal noted that the applicants had approached the Apex Court against the order dated 24-4-2008, and the appeal was dismissed. The Tribunal emphasized the principle of merger, stating that once an appellate authority disposes of an appeal, the order of the lower authority merges into the appellate authority's order. The Tribunal referred to the Apex Court's decisions in Kunhayammed and Others v. State of Kerala and Another and Chandi Prasad and Others v. Jagdish Prasad and Others, which elucidate the doctrine of merger. The Tribunal concluded that since the Apex Court had dismissed the appeal, the Tribunal's order became final and executable.

On Reduction of Duty Demand:
The Tribunal observed that the applicants' argument regarding the invoices being in possession of the Commissioner was not substantiated by specific pleadings or evidence. The Tribunal found no indication in the record that the invoices referred to in Annexure-60 were indeed seized and remained with the Commissioner. The Tribunal held that the applicants failed to establish that the Commissioner had the relevant invoices at the time of the original order.

On Alleged Mistake Apparent on the Face of the Record:
The Tribunal asserted that the application for rectification was essentially seeking a de novo hearing rather than correcting any apparent mistake. The Tribunal emphasized that once the applicants had approached the Supreme Court and the appeal was dismissed, it was not permissible to re-approach the Tribunal for rectification under the guise of correcting an order. The Tribunal reiterated that the applicants could not raise points in piecemeal through different proceedings, as this would undermine the principle of finality in litigation.

Conclusion:
The Tribunal dismissed the applications for rectification, finding no merit in the arguments presented by the applicants. The Tribunal upheld its original order dated 24-4-2008, emphasizing the finality of the appellate process and the doctrine of merger.