Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2023 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (1) TMI 53 - AT - Central ExciseRectification of mistake - mistake apparent on the face of record or not - whether non-consideration of the contentions relevant to the issue for determination which were raised before Bench of the Tribunal, can be said to be mistakes apparent from the record so as to be rectified under section 35C(2) of the Excise Act? - invocation of extended period of limitation - entitlement to avail CENVAT Credit - HELD THAT:- In ASSISTANT COMMISSIONER, INCOME TAX, RAJKOT VERSUS SAURASHTRA KUTCH STOCK EXCHANGE LTD [2008 (9) TMI 11 - SUPREME COURT] the Supreme Court held that non-consideration of a decision of a High Court or the Supreme Court can be said to be a “mistake apparent from the record”, which mistake can be rectified. It was pointed out that the error apparent from the record should be so manifest and clear that no Court would permit it to remain on record. It should be pertinent and self-evident and not require any elaborate discussion of evidence or argument. It was also observed that rectification of an order stems from the fundamental principle that justice is above all and it is to be exercised to remove the error and to disturb the finality - If non-consideration of a decision of the High Court or the Supreme Court can be said to be a “mistake apparent from the record‟, there can be no doubt that non-consideration of two important submissions which were advanced at the time of hearing of the appeal would constitute a mistake apparent from the record which would require rectification. Invocation of extended period of limitation - HELD THAT:- It would be seen that the ER-III/ER-I returns filed by the applicant clearly show that the applicant had categorically declared that it had cleared the final products by availing the exemption under the notification dated 17.03.2012. The applicant had furnished the returns on the basis of self assessment. Even in a case of self-assessment, the Department can always call upon an assessee and seek information. It is under sub-rule (1) of rule 6 of the Central Excise Rules, 2002 [the 2002 Rules] that the assessee is expected to self assess the duty and sub-rule (3) of rule 12 of the 2002 Rules provides that the proper officer may, on the basis of information contained in the return filed by the assessee under sub-rule (1), and after such further enquiry as he may consider necessary, scrutinize the correctness of the duty assessed by the assessee. Sub-rule (4) of rule 12 also provides that every assessee shall make available to the proper officer all the documents and records for verification as and when required by such officer. Hence, it was the duty of the proper officer to have scrutinized the correctness of the duty assessed by the assessee and if necessary call for such records and documents from the assessee, but that was not done. It is, therefore, not possible to accept the contention of the learned authorized representative appearing for the Department that the appellant should have filed a proper assessment return under rule 6 of the Rules. Not only do the 2002 Rules mandate officers to scrutinise the Returns to verify the correctness of self assessment and empower the officers to call for documents and records for the purpose, Instructions issued by the department also specifically require officers at various levels to do so - the finding in the order of the Commissioner that the applicant had deliberately filed incorrect returns as a result of which the extended period of limitation could be invoked cannot be sustained. The Department was aware of the material facts, more particularly when the availment of exemption benefit under notification dated 17.03.2012, had been categorically declared by the applicant in the excise returns. Thus, it is clear that material facts were in the knowledge of Department but still the Department issued show cause notice after inordinate delay of three years - the invocation of extended period of limitation for confirmation of the duty cannot be sustained and is set aside - penalty imposed for this period cannot, therefore, also be sustained. Entitlement to avail CENVAT Credit - HELD THAT:- The paragraph 23 of the final order dated 22.04.2022 passed by the Tribunal shall stand deleted and shall be replaced by the following paragraph:- The impugned order dated 15.07.2019 passed by the Principal Commissioner is modified to the extent that the duty demand confirmed for the extended period of limitation i.e. for the period upto November, 2016 and the imposition of penalty are set aside. The appellant would also entitled to avail CENVAT credit of duty paid on the inputs, input services and capital goods in the manufacture of final products. The remaining part of the demand confirmed by the Principal Commissioner in the order dated 15.07.2019 is confirmed. The appeal is, accordingly, allowed to the extent indicated above. The matter is remitted to the Principal Commissioner to re-determine the duty demand in the light of the observations made above. Application disposed off.
|