2000 (11) TMI 430 - AT - Central Excise

Summary

Issues:
Rectification of mistake (ROM) under Section 35C(2) of the Central Excises Act, 1944 - Dispute regarding determination of furnace/rolling mills capacity and duty liability after abatement claim - Applicability of Supreme Court decision in Commissioner of Central Excise and Customs, Kanpur v. Venus Castings Pvt. Ltd.

Analysis:
The Commissioner of Central Excise filed a miscellaneous application for the rectification of mistake (ROM) under Section 35C(2) of the Central Excises Act, 1944, arising from the Tribunal's Final Order in Appeal No. E/944/99-NB. The dispute centered around the determination of the furnace/rolling mills capacity and duty liability after allowing the abatement claim for the period of closure. The Tribunal had remanded a similar appeal previously, and in the interest of justice, decided to remand this matter as well for a consolidated view by the jurisdictional Commissioner of Central Excise.

The ROM application highlighted factual inaccuracies in the Tribunal's order, specifically regarding the discussion on the determination of furnace/rolling mills capacity and abatement claims. The application referenced the Supreme Court decision in Commissioner of Central Excise and Customs, Kanpur v. Venus Castings Pvt. Ltd., emphasizing the exclusion of claiming benefits under Section 3A(4) if the procedure under Rule 96ZO(3) had been availed. The Tribunal's order did not address the capacity determination aspect, leading to an open remand for the jurisdictional Commissioner to pass an appealable speaking order after providing both parties an opportunity.

The Tribunal concluded that there was no mistake apparent from the record in the order that warranted rectification. However, both parties were granted the liberty to present relevant decisions, including the Supreme Court's ruling in Commissioner of Central Excise & Customs, Kanpur v. Venus Castings Pvt. Ltd., for the adjudicating Commissioner's consideration. Ultimately, the ROM application filed by the Revenue was disposed of with these observations, maintaining the status quo of the Tribunal's decision and the remand for further proceedings.