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2013 (3) TMI 478 - CESTAT MUMBAIRectification of mistake (ROM) u/s 35C(2) of the Central Excise Act, 1944. - Appellant submitted that the ground of erroneous calculation of duty by the department has also not been considered by the Tribunal and the Tribunal erroneously confirmed the demand as per the Order-in-Original, which is incorrectly calculated. He also submitted that without considering the ground of revenue neutrality, the penalty under Section 11AC cannot be imposed on them. Reliance has been made on the case of Commissioner of Income Tax v. Ramesh Chandra Modi – [2000 (7) TMI 8 - RAJASTHAN High Court]. Held that:- Tribunal find that in the present case the points raised in the ROM application were not urged by the applicant at the time of hearing of the application and in their written submissions submitted on the date of hearing. The issue relating to the Rectification of Mistake under Section 35C(2) of the Central Excise Act, 1944 was examined by the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Belapur, Mumbai v. RDC Concrete (India) Pvt. Ltd. reported in [2011 (8) TMI 25 - SUPREME COURT OF INDIA] and observed that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In view of the observation of the Hon’ble Supreme Court, Tribunal find that the application for ROM filed by the applicant is not sustainable.
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