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TMI Blog2019 (4) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30 August, 2013 and 24 October, 2013 passed by the Commissioner of the Central Excise (Appeals), Jaipur, is „not proper and legal‟ and therefore the Tribunal may determine afresh as to "whether the assessee was required to maintain separate records of the Cenvat Credit in respect of output services and manufacturing activities and whether it was legally correct in using the credit earned in respect of manufacturing activities only, for the purpose of payment of Service Tax on output services?". 2. The records indicate that the two issues involved in the appeals, as have been noted in the Final Order dated 31 July 2017, are as follows:- (i) Whether the Cenvat Credit taken for the input/capital goods used for manufacturin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawn." 5. Subsequently, the Department filed a Review Petition which was disposed of on 10 September, 2018 with following observations : "This review application has been filed seeking review of the order dated 04.04.2018 with the prayer that even though this Court permitted the applicants to withdraw both the appeals with liberty to prefer appropriate applications before the tribunal to consider the arguments of the parties. However, the intention of the Court was of course with regard to condone the delay in filing applications, as normally a period of limitation is six months in filing thereof. Since the petitioner approached this court by filing appeals, the time consumed in filing the appeals and now during the pendency of revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and during the pendency of review petition should be adjusted in computing the period of limitation of filing applications. According, the Hon‟ble High Court vide its order dated 10.09.2018 has disposed the review petition of department holding that "we deem it proper to observe that the time consumed in approaching the Court in filing appeals/review would be considered by Tribunal for condoning the delay and accordingly the Tribunal should deal with the matter on merits and accordance with law." I. In the Light of orders of Hon‟ble High Court the said Final Order No. ST/55591-55592/2017-CU(DB) dated 31-07-2017 has to be considered for review on following grounds:-" 7. It will also be appropriate to reproduce paragraphs 9 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of output services and manufacturing activities and whether it was legally correct in using the credit earned in respect of manufacturing activities only, for the purpose of payment of services tax on output services? b. For passing any other order on merit, as deemed fit." 8. Shri G.R. Singh, learned Authorized Representative of the Department has submitted that while disposing the Review Petitions the High Court had directed that the Tribunal should deal with the matter on merits in accordance with law and so the Miscellaneous Applications are maintainable. It is his submission that Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 is wide enough to confer a power on the Tribunal to ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed by M/s R.G. Pigments Pvt. Ltd. was partly allowed by modifying the impugned order to the extent indicated therein. The Tribunal held that the Cenvat Credit taken for the input/capital goods used in the manufacture can be allowed for payment of Service Tax on the output services. 12. The Department filed two appeals before the Rajasthan High Court as it felt aggrieved by the order dated 31 July, 2017 passed by the Tribunal, but, as the order of the High Court indicates, the learned Counsel for the Appellant sought permission to withdraw both the appeals to prefer "appropriate" applications before the Tribunal to consider the arguments of the parties. Permission was granted by the High Court and the two appeals were, accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected the Tribunal to hear the appeals on merits afresh and even otherwise the only power conferred upon a Tribunal, after a decision is rendered in an appeal is to rectify any mistake apparent from the record under Section 35(2) of the Act. The Tribunal does not have the power to even review an order, much less to hear the appeal afresh on merit. 17. Rule 41 on which the reliance has been placed by the learned Authorized Representative of the Deprtment provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. This Rule, therefore, cannot come to the rescue of the Department to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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