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TMI Blog2008 (2) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... br>Ms. Jyoti Balasundaram, Vice-President and Shri K.K. Agarwal, Member (T) Shri C.M. Sharma, Consultant, for the Appellant. Shri M.H. Patil, Advocate, for the Respondent. [Order per: K.K. Agarwal, Member (T)]. - This is an application for Rectification of Mistake apparent from the record in respect of our Order Nos. A/795 to 303/2007/C.I dated 16-10-2007 [2008 (221) E.L.T. 531 (Tribunal)] on the ground that the Tribunal while passing the decision has taken a view which is contrary to the law laid down by the Hon'ble Supreme Court in the case of Amrit Paper v. CCE - 2006 (200) E.L.T. 365 (S.C.). 2. Brief facts of the case are that the assessee M/s. Jain Irrigation Systems Ltd. was engaged in the manufacture of various products such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty confirmed by the Commissioner is required to be upheld or not and the issue of recovery of credit was not an issue before it. 3. The ld. Consultant for the Revenue contended that there has been an error on the part of Tribunal in not appreciating that the benefit of Notification No. 46/94 dated 1-3-94 and Notification 56/95 dated 16-3-95 was available only if the credit of duty paid on inputs was not availed. The Tribunal ought to have appreciated that even though the Notification did not carry a specific condition to this effect, yet the provisions of Rule 57C of Central Excise Act, 1944 have to be read into it, and in interpreting the notification recourse to reading the provisions of Rules is mandatory and is settled law. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty confirmed by the Commissioner is required to be upheld or not and the issue of recovery of credit is not the issue in the appeal before it. It was submitted that the order-in-original very clearly brings out that the final product has been cleared by the assessee both on payment of duty as well as without payment of duty and though the credit was reversed in respect of duty paid clearances, no such reversal was made in respect of clearances made without payment of duty in a clandestine manner and therefore this credit was required to be reversed and could not have been utilized for payment of duty in respect of final goods cleared on payment of duty. 6. ROM application further contends that the benefit of Notification 46/94 has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81 of his order has not questioned the admissibility of the exemption but has taken a stand, that once the appellant has himself paid duty on these very products, it cannot take a different stand in respect of same goods which were found to have been clandestinely removed by them. As we have held that eligibility to exemption to Notification is not dependent on the fact that whether the goods were cleared clandestinely or otherwise and once the admissibility of exemption to parts of irrigation system has not been questioned by the Commissioner and once no appeal has been filed by the Revenue against Commissioner's order, the order passed by the Tribunal accepting this position cannot be disputed by applicant and accordingly no error can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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