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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 ..... es not have the power to even review an order, much less to hear the appeal afresh on merit. 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 make a prayer for a fresh decision. Application dismissed. - Service Tax Appeal No. 50085/50521 of 2014 - MISC. ORDER NO. _50220-50221/2019 - Dated:- 14-3-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Vijay Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Service Tax on the output services . With regard to the second issue, the Tribunal held that the rate of Service Tax, as in force on 6 March, 2009 and 12 March, 2009, would be applicable. The appeal filed by M/s Mittal Pigments Pvt. Ltd. was allowed and the impugned order was set aside while the appeal filed by M/s R.G. Pigments Pvt. Ltd. was partly allowed as the impugned order was modified to the extent indicated in the order. 4. The Department thereafter filed two appeals before the Rajasthan High Court against the common order passed by the Tribunal in the two appeals filed by M/s Mittal Pigments Pvt. Ltd. and M/s R.G. Pigments Pvt. Ltd. Both the appeals were dismissed as withdrawn by order dated 4 April, 2018 in view of the perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med in approaching this Court in filing the appeals/review would be considered by the Tribunal for condoning the delay and accordingly, the Tribunal should deal with the matter on merits in accordance with law. With the aforesaid observations, this review petition is disposed of. 6. It is thereafter, that two Miscellaneous Applications have been filed by the Department. Paragraphs G, H and I set out the reasons for filing the Applications and they are reproduced below: G. The said order of the CESTAT was challenged before Hon‟ble High Court of Judicature of Rajasthan, Jaipur. While arguing the appeal before Hon‟ble High Court it was found that the arguments which the department was raising before Hon‟ble Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces and Buisness Auxiliary services. These two activities are independent of each other. Therefore, there is no common input or input services on which the assessee had taken CENVAT Credit. The assessee has failed to establish that the inputs/input services and capital goods were actually exclusively used for providing output services. Hence there is no scope for cross utilization of CENVAT Credit. Therefore, the Order of the Tribunal that the assessee can cross utensils the CENVAT Credit in not legally correct in this case. 10. Hence, it appears that Hon‟ble CESTAT‟s Final Order No. ST/A/55591-55592-CU(DB) dated 01-08-2017 is not legally correct, therefore, it is requested to reconsidered the above facts in the light of obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar, learned Counsel for the Appellant has, however, submitted that the Miscellaneous Applications filed by the Department are not maintainable. His submission is that, the power conferred upon the Tribunal under Section 35C (2) of the Central Excise Act, 1944 is for rectification of any mistake apparent from the record and the two Miscellaneous Applications do not seek rectification of any mistake apparent from record. He also submitted that by moving these two applications, the Department is, in fact, seeking a fresh hearing of the appeals which is not permissible in law and even Rule 41, on which reliance has been placed by the learned Authorized Representative of the Department cannot be resorted to in the circumstances of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er filed Review Petitions before the High Court basically for excluding the period taken by the Appellant in preferring the appeals and the Review Petitions, while computing the period of limitation provided for filing the applications. 14. The Department had in mind the provisions to Section 35C(2) of the Act, since this Section provides that the Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it and shall make such amendments if the mistake is brought to its notice by the Principal Commissioner of Central Excise or the other parties to the appeal. 15. While disposing of the Review Petitions, the High Court obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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