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TMI Blog2015 (12) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... en by a manufacturer and that by way of the amendment, a new right was created in favour of the revenue, it is evident that there is clear contradiction in the second part of the operative portion of the judgement, to the extent it is held that there is no scope of reversal unless any condition has been imposed for remission of duty in terms of Rule 21 of the Central Excise Rules, 2002 making it clear that the credit already taken is to be reversed. In the opinion of this court, when the Full Bench has clearly held that prior to September 7, 2007, there was no statutory provision permitting the revenue authorities to direct reversal of credit already taken, the question of imposing any condition for reversal while granting remission of duty in terms of rule 21 of the Central Excise Rules would certainly not arise. Thus, it appears that the aforesaid part has crept in on account of inadvertent error and the same being in direct conflict with the main part of the judgment, requires to be deleted in the interest of justice. Powers of review can be exercised in rectifying an error in the earlier judgment. In the light of the above discussion, the applicant has clearly made out a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Full Bench in Tax Appeals No.2520 of 2010, 896 of 2011 and 1586 of 2010, to the extent in the operative part thereof it has observed thus: unless any condition has been imposed for remission of duty in terms of Rule 21 of the Central Excise Rules, 2002 making it clear that the credit already taken is to be reversed. . 5. Mr. Paresh Dave, learned advocate for the applicant invited the attention of the court to the judgment and order under review, to point out that the Full Bench, after going through the provisions of the rules relating to CENVAT, had found that prior to the introduction of sub-rule (5C) of rule 3 of the Cenvat Credit Rules, there was no provision which provided for reversal of the credit by the excise authorities where it has been lawfully taken by a manufacturer. Therefore, the credit accrued at the moment the raw material or the input was used in manufacturing of a final product which was neither exempt from duty nor carried nil rate of duty. Such being the provision, as it stood in the Cenvat Credit Rules prior to September 7, 2007, there is no scope of application of equitable doctrine against the assessee and in favour of the revenue on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for reversal, it cannot be left to the discretion of the Commissioner whether or not to impose such a condition. Reference was made to the decision of the CESTAT in the case of Collector of Central Excise and Customs v. Bhima Sahakari Sakhar Karkhana Ltd., 1993 (68) ELT 647 (Tribunal), to point out that the condition envisaged in rule 49, which is in pari materia with rule 21 of the Central Excise Rules, relates to conditions, such as ordering destruction under proper supervision or other such conditions. Reference was also made to the decision of the CESTAT in the case of Girna S.S.K. Ltd. v. Collector of Customs, 1991 (53) ELT 404 (Tribunal), for the proposition that the only conditions which could be contemplated are that the goods ordered to be destroyed do not go into the market for consumption and measures to ensure that object are to be prescribed by way of conditions. It was submitted that therefore, only such conditions can be imposed so as to ensure that the goods do not find their way to the market and do not create any pollution. However, in the absence of any power to direct reversal, no condition for reversal of CENVAT credit could be imposed. 5.2 On the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rules, there was no provision, which provided for reversal of the credit by the excise authorities where it has been lawfully taken by a manufacturer. Therefore, the credit accrued at the moment the raw material or the input was used in manufacturing of a final product which was neither exempt from duty nor carried nil rate of duty. Such being the provision, as it stood in the Cenvat Credit Rules prior to September 7, 2007, there is no scope of application of equitable doctrine against the assessee and in favour of the revenue on the ground that it will amount to conferring of double benefit. The moment sub-rule (5C) was introduced, the Legislature made its intention clear that from the date of coming into force of the said amended rule, in case of future remission on the ground mentioned in the said subrule, there will be reversal of the credit. The court further expressed the view that the amendment has been effected from a particular date and at the same time, prior to such amendment, there was no provision of reversal as introduced in the rules by way of amendment under the circumstances stated therein. Thus, it is creation of a new right in favour of the revenue and in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h needs to be rectified. 10. As regards the maintainability of this application for review, reference may be made to the decision of the Supreme Court in the case of Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741 wherein it has been held thus: 89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words sufficient reason in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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