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TMI Blog2013 (2) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... in their reply to the show-cause notice, did not claim inapplicability of Rule 15 and, in such circumstances, it did not occur to the Department that a corrigendum should be issued to correct the legal error. It appears, it was before the Commissioner(Appeals) that the party, for the first time, took the contention that Rule 15 ibid was not applicable. This contention is being reiterated before the Tribunal. Thus on the facts of this case, it cannot be gainsaid that Rule 15 is not applicable and, therefore, the penalty imposed thereunder is liable to be set aside, and it is ordered accordingly. In the result, the appeal succeeds. Mistake of fact cannot be rectified at later stage whereas a mistake of law is rectifiable subject, of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they issued their own invoices to M/s. Laxmi Constructions without supply of the materials specifically described in the said invoices; (d) that the materials specifically described in the said invoices issued by the registered dealer were supplied to M/s. Tubes Allied Products; (e) that M/s. Laxmi Constructions took CENVAT credit of the duty mentioned in the said invoices; (f) that, on the ground of the appellant having issued CENVATable invoices without supply of materials to M/s. Laxmi Constructions, a show-cause notice was issued to the appellant for imposing penalty on them under Rule 15 of the CCR, 2004; (g) that this proposal was contested by the appellant; (h) that the adjudicating authority imposed a penalty of Rs.1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant case, the controversy is around applicability of Rule 15 of the CCR, 2004 or Rule 26 of the Central Excise Rules, 2002. As it is not in dispute that the appellant issued CENVATable invoices to M/s. Laxmi Constructions without supply of the materials specifically described in such invoices, their conduct would attract sub-rule (2) of Rule 26 of the Central Excise Rules, 2002. This provision had come into force w.e.f. 01/03/2007. The above offence was committed by the appellant in April 2007. The Department could very well have invoked Rule 26(2) to penalize the offender. However, they chose Rule 15 of the CCR, 2004. It also needs to be mentioned that the party, in their reply to the show-cause notice, did not claim inapplicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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