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TMI Blog2012 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal had been dismissed. 2. The appellant are a manufacturer of aluminium alloy ingots chargeable to Central excise duty under sub-heading 760100 of the Central Excise Tariff. They availed the facility of Cenvat credit of Central Excise duty paid on inputs in terms of Cenvat Credit Rules, 2002. The period of dispute in this case is from May 2002 to October 2002 when the appellant received 15162 duty paid aluminium die cast decorative tiles from M/s. Hindustan Industries, Faridabad, in respect of which they took Cenvat credit amounting to Rs. 58,874. The tiles were subjected to the process of clearing, buffing, electroplating and baking. The tiles after these processes were exported out of India. The Department, being of the view tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the appellant had been exported under bond and hence, in any case, the appellant would be entitled for Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2002. On being asked, learned Counsel, however, stated that this plea has not been made in course of proceedings before Assistant Commissioner or Commissioner (Appeals)", are factually incorrect as is clear from para 4(2)(iii) of the order-in- appeal of CCE (Appeals), such a plea had been made. 2. Heard both the sides. 3. Shri D.K. Tyagi, Advocate, the learned Counsel for the appellant, pleaded that as is clear from para 4 (2) (iii) of CCE (Appeals)'s order, the plea regarding admissibility of rebate of duty paid on crude tiles under Rule 18 of the Central Excise Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiles has no bearing on the question of admissibility of Cenvat credit of duty paid on rough tiles which is admissible subject to following the procedure prescribed in this regard in the notification issued under Rule 18 of Central Excise Rules, 2002, that when the Tribunal has held that Cenvat credit of duty paid on rough tiles is not admissible for the reason that the process of clearing, buffing, baking, electroplating etc. on the crude/rough tiles do not amount to manufacture, this decision cannot be revised by filing a ROM application, that the points raised in the ROM application cannot be called mistake apparent from records and the provisions of Section 35C(2) are not applicable, that in this regard, he relies upon the Apex Court's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held or if rebate is not allowed, the Cenvat credit demand must be quashed. 5.1 Para 2.1 of the Final order dated 28-4-2011 records that the appellant have not made plea regarding cash refund of Cenvat credit under Rule 5 of Cenvat Credit Rules, 2002 before CCE (Appeals). The appellant pleaded that they had made such a plea before CCE (Appeals), though of admissibility of input duty rebate under Rule 18 before CCE (Appeals) as is clear from para 4(2)(iii) of CCE (Appeals)'s order. This plea has obviously not discussed in the order. The point to be decided is as to whether this would amount to a "mistake apparent from records" attracting the provisions of Section 35C(2). 6. The Apex Court in case of CCE, Calcutta v. A.S.C.U. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word "apparent" is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this case - admissibility of Cenvat credit of duty paid on rough tiles, as for the reasons given below, considering or not considering this plea will have not bearing on the final decision. (i) Input duty Cenvat credit under Rule 3 of Cenvat Credit Rules, 2002 and rebate of duty paid on goods exported available under Rule 18 of Central Excise Rules, 2002 are two independent things. There is no provision to allow Cenvat credit, even if inadmissible, in exchange for rebate of duty under Rule 18. (ii) Since, the process has been held as not amounting to manufacture, the rebate under Rule 18, referred to in the grounds of appeal would be the rebate of excise duty paid on goods exported out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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