2014 (7) TMI 104 - AT - Central Excise

Rectification of mistake - Benefit of Notification No. 2/95-C.E. - Penalty under Rule 173Q of Central Excise Rules, 1944 - Held that - Perusal of the appellate order throws light that the appellant did not argue on cum-duty price in the course of appeal hearing. Further, the Tribunal held that benefit under Notification No. 8/96 is deniable. Remand was made clearly directing to consider eligibility to Notification No. 2/95 and quantify duty as well as penalty - It may be stated that what that is not pleaded in the course of appeal hearing is not required to be dealt by the Tribunal because Tribunal cannot discover a case not argued. Merely taking ground in the grounds of appeal without arguing thereon during hearing of appeal, the appellant loses right to ask for a finding by the Tribunal - Tribunal having no power to review its own order, becoming functus officio after passing the appeal order - Decided against assessee.

Summary

Issues:
1. Appellant's request for rectification of mistake and decision on merit
2. Eligibility of benefit under Notification No. 2/95-C.E.
3. Re-quantification of duty demand and re-determination of penalty
4. Penalty under Rule 173Q of Central Excise Rules, 1944
5. Calculation of duty based on cum-duty price
6. Tribunal's authority to review its own order

Analysis:
1. The appellant did not appear for the hearing but requested rectification of mistake and decision on merit. The Tribunal remanded the matter to assess eligibility for benefit under Notification No. 2/95-C.E. and to re-quantify duty demand and re-determine penalty. The appellant claimed that no finding was given on penalty and cum-duty aspects, but the Tribunal found that the appellant did not argue on cum-duty price during the appeal hearing. The Tribunal's order directed consideration of eligibility to Notification No. 2/95 and quantification of duty and penalty.

2. The learned DR argued that the authority below should pass an appropriate order in line with the Tribunal's directions upon remand. The Tribunal clarified that issues not pleaded during the appeal hearing need not be addressed, as the Tribunal cannot create a case not argued. Simply including a ground in the appeal without arguing it during the hearing waives the appellant's right to request a finding from the Tribunal. Therefore, the Tribunal dismissed the appellant's application for rectification of mistake.

3. The Tribunal emphasized that since the appellant did not specifically plead for a finding on cum-duty price and penalty under Rule 173Q during the hearing, there was no apparent mistake in the original order. The Tribunal also highlighted its lack of authority to review its own order, as it becomes functus officio after passing the appeal order. Consequently, the miscellaneous application for rectification of mistake was dismissed by the Tribunal.

This judgment underscores the importance of presenting arguments during the appeal hearing and the limitations on the Tribunal's power to review its own orders once passed. The decision reaffirms the principle that issues not raised and argued by the parties during the hearing cannot be considered by the Tribunal, even if included in the grounds of appeal.