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TMI Blog2012 (2) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Central Excise Act, the same has been filed. If, it is treated as application for rectification of the mistakes apparent from record under Section 35C(2), the same would not be maintainable as what Section 35C(2) provides is rectification/amendment of an order passed by this Tribunal under sub-section (1) of Section 35C, while the impugned order is not an order passed under Section 35C(1), but an order passed under Section 35F on the question of waiver of pre-deposit. The burden to prove that the material covered under invoices, on the basis of which Cenvat credit had been taken by the appellant had actually been received by them, would be on the appellant and prima facie we find that no evidence in this regard has been produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11A(1) and Section 11AB of Central Excise Act, 1944; (b) imposed penalty of equal amount i.e. Rs. 72,56,374/- on the appellant company under Rule 13(2) of Cenvat Credit Rules, 2002/Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944; and (c) while penalty of Rs. 7,00,000/- was imposed on Shri Manoj Tayal, penalty of Rs. 1,00,000/- each was imposed on the other Directors of the appellant company. 1.1 The appellants filed appeals along with stay applications against the above-mentioned order of the Commissioner. In respect of stay applications filed by the appellants, the Tribunal vide Stay Order No. 751-755/2011-EX, dated 25-7-2011, directed the appellant company to deposit an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no manufacturing in the factory of KPIPL, which is based on a subsequent visit, is without any basis, that the statement dated 17-3-2006 of Shri Naresh Guleria does not support the department s case, as in his statement he has admitted to issuing bogus invoices only from 2006, while the period of dispute in this case is from July, 2003 to 31-1-2006, and that a case of unaccounted production has been booked against KPIPL on 30th July, 2004 in respect of which an order has also been passed by the Assistant Commissioner, which goes against the department s allegation that there was no manufacturing activity in the factory of KPIPL and the invoices issued by KPIPL are bogus invoices, is without any basis. He, therefore, pleaded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 35F on the question of waiver of pre-deposit. 5. Moreover, on the perusal of the miscellaneous application, it is seen that it has been drafted as an appeal and seeks re-appraisal of the evidence which cannot be allowed by the way of rectification application, as the Hon ble Supreme Court in the case of C.C.E., Calcutta v. A.S.C.U. Ltd. reported in 2003 (151) E.L.T. 481 (S.C.) has held that mistake apparent on the face of record which can be rectified under Section 35C(2) must be an obvious and patent mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible. This is not the case where the mistakes alleged by the appellant are obvious and patent mistakes, as in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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