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2012 (12) TMI 531 - AT - Central ExciseRectification of Mistake - Condonation of delay of 124 days in filing ROM Application – Held that:- Foolowing the decision taken in COLLECTOR OF C.E., CHANDIGARH Versus DOABA CO-OPERATIVE SUGAR MILLS [1988 (8) TMI 103 - SUPREME COURT OF INDIA] there is no scope for condonation of delay in filing of ROM application under Section 35C(2) when there is no provision for such condonation and the Tribunal being a creation of statute, cannot travel beyond the confines of the statute. The provisions of Section 5 of the Limitation Act, 1963 read with Section 151 CPC are not applicable for condonation of delay in filing of appeals or rectification application under the provisions of Central Excise Act, 1944.The delay in filing of ROM application, therefore, cannot be condoned and the application has to be rejected as time barred. Interest on Refund of Pre deposit - Held that:- As from ROM it is seen that assessee seek interest @ 12% p.a. from the date of pre-deposit i.e. 8-8-2008 till the date of refund of pre-deposit on 18-10-2011. But there is no provision in Central Excise Act, 1944 for interest on pre-deposit from the date of pre-deposit. Section 35FF permits interest only from the date of expiry of three months from the date of communication of the Appellant order to the Department till the date of refund of pre-deposit. A debatable point of law can not be a “mistake apparent from the record” as held in case of CCE, Calcutta v. ASCU Ltd. (2002 (12) TMI 87 - SUPREME COURT OF INDIA) - a mistake apparent from record’ is that which is an obvious and patent mistake and is not something which has to be established by long drawn process of reasoning on which there may be conceivably two opinions - ROM application and condonation of delay in filing of ROM application dismissed.
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