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Central Excise - Case Laws
Showing 61 to 80 of 106 Records
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2020 (2) TMI 686 - CESTAT MUMBAI
Marketibility/excisability - Milk Crumb - clearing the product to sister concern as intermediate goods - revenue neutrality - HELD THAT:- There seems to be no dispute about various propositions of the law for determining excisability/dutiability of the goods. One of the tests that has to be conclusively established, is that the product is marketable. It has also been held in various decisions that marketability essentially does not mean “being marketed” - In the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS HINDUSTAN ZINC LTD. [2004 (3) TMI 64 - SUPREME COURT], the Hon’ble Supreme Court has specifically laid down that actual purchase or sale is not necessary for determining the marketability of any goods. What needs to be shown is that the product is capable of being taken to the market to be sold and the market recognizes the said product as such.
Now examining the various evidences led in the present case, the first and the foremost being that the respondents themselves have been treating this goods as excisable and were discharging the duty demand on that till October 2006. Hence they were themselves treating these goods as marketable contrary to the decision in the case of COLLECTOR OF C. EXCISE, PUNE VERSUS HINDUSTAN COCOA PRODUCTS LTD. [1996 (7) TMI 257 - CEGAT, NEW DELHI] - Once they themselves have been doing so, they cannot turn around and say that the product which was marketable till that date has become unmarketable.
There is no dispute with regard to the shelf life of the product. Shelf life of the product is one of the determinant of the product being marketable. If some product is having no shelf life or a very short shelf life, then the same could not be held to be marketable as has been held in the decision of the Apex Court in the case of Moti Laminates. That is not the case here.
Revenue neutrality - HELD THAT:- If the issue was revenue neutral, the respondent would have paid the duty and taken the credit whatsoever, if the same was admissible. Secondly revenue neutrality can never be ground for not demanding the duty on the excisable goods in the form and manner they are being cleared by the assessee.
Thus, the goods in question viz. milk crumb is marketable and hence excisable - appeal allowed - decided in favor of Revenue.
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2020 (2) TMI 685 - CESTAT NEW DELHI
CENVAT Credit - manufacture of dutiable as well as exempt goods - Rule 6(3) of Cenvat Credit Rules - non-maintenance of separate records - HELD THAT:- It is an admitted fact that the appellant has kept separate records, as required under Rule 6(2) of inputs and capital goods w.e.f. 1.7.2014/1.4.2015. Further, the admitted fact is that the appellant has kept common records of only few common input services, which is of negligible amount and further, the turnover of exempted goods is also negligible as compared to dutiable goods. Further, the appellant has reversed cenvat credit, on being so advised by the Department of the credit attributable to the exempted goods, under intimation to the Department. Thus, it amounts to not taking of cenvat credit at all with respect to the exempted goods.
Cenvat credit cannot be denied as it is held that the substantial benefit should not be denied for small procedural lapse. Further, it has been repeatedly held that Rule 6(2) read with Rule 6(3) is not the charging section or provision, it is only the mechanism to reverse the cenvat credit involved in the exempt out (finished goods) by way of a convenient formula.
The impugned order suffers with impropriety and the same is mis-conceived - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 684 - CESTAT ALLAHABAD
Seizure of goods during the search operation - Chewing Tobacco or not - HELD THAT:- Through the impugned order, learned Commissioner (Appeals) has upheld confiscation on seized goods worth ₹ 80,000/- holding the same to be chewing tobacco packed in pouches. Further, he also upheld imposition of penalty of ₹ 40,000/- on the appellant. From the record, it is found that though the samples of the seized goods were taken the same were not sent for chemical examination by CRCL, New Delhi and market opinions were obtained. There is no provision in Central Excise law to decide the chemical composition of the goods on the basis of market opinion. The samples should have been sent to CRCL to seek report as to whether the same were chewing tobacco.
It was not proved that the seized goods were chewing tobacco - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 626 - MADRAS HIGH COURT
Rebate claim - claim rejected on the ground that the description of the export goods in the export invoices were invariance within the description in Form ARE-1's - Maintainability of application - Section 35 EE of the Central Excise Act, 1944 - HELD THAT:- Goods imported under Advance Authorisation Schemes are exempted are from payment of customs duty, additional customs duty, education cess, anti-dumping duty and safeguard duty et cetera. An importer has to 1st discharge export obligation undertaken under the Advance Authorisation by exporting finished goods out of the country. Had the petitioner used only duty paid goods in the manufacture of export goods the petitioner would have been entailed rebate under Rule 18 of the Central Excise Rules, 2002.
In the present case, however the petitioner has utilized not only goods/inputs imported under the Advance Authorisation Scheme but also goods/inputs procured on payment of excise duty/additional duty of customs equivalent to central excise duty on which it availed CENVAT Credit to manufacture goods exported - There is no discussion in the impugned orders of the 1st, 2ndrespondent and the 3rd respondent as to under which customs notification the goods were imported by the petitioner under the Advance Authorisation Scheme.
The petitioner has used goods/inputs procured on payment of Central Excise duty and Additional Duty of Customs equivalent to Central Excise Duty along with goods imported under the Advance Authorisation Scheme to manufacture of export goods to claim rebate under Rule 18 of the Central Excise Rules, 2002 on the finished goods exported from the Coimbatore unit of the petitioner - Normally, only after export obligation undertaken/specified in the Advance Authorisation is discharged, a manufacturer would be entitled to either sell the manufactured goods in the domestic tariff area i.e in the domestic market on payment of excise duty or export them and claim rebate of excise duty paid on such goods under Rule 18 of the Central Excise Rules, 2002.
To allow rebate claim to the petitioner without the petitioner discharging the obligation undertaken under the relevant customs notification read with Foreign Trade Policy under which the inputs were imported may result in unintended incentives being granted to the petitioner without proper examination - Appeal allowed by way of remand.
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2020 (2) TMI 625 - CESTAT MUMBAI
Refund of CENVAT Credit - denial on the ground that the same could have been adjusted against payment of tax on inputs and Cenvat Credit account was not debited at the time of making the claim - period January, 2012 to March, 2012 - HELD THAT:- The assessee had cleared goods for export under LUT as well as on payment of duty and therefore, there was opportunity on the part of the assesse to utilise accumulated credit for export of goods on payment of duty. Appellant had not denied the same but its only contention was that even after payment of all duties, it had accumulated Cenvat credit because of high rate of duty in the input and low rate duty in the output, which is required to be refunded. Going by Rule 5 of Cenvat Credit rule, it is manifestly cleared that refund is admissible where for any reason such adjustment is not possible.
In the instance case, adjustment of 12% duty on inputs can never be made possible against 6% on output to bring the difference to ‘zero’ level. Therefore the Learned Commissioner (Appeals) should have refunded the balance amount which was available to the claimant as further adjustment was not possible.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 624 - CESTAT MUMBAI
Clandestine manufacture and removal - M.S. Ingots - shortages and excesses in finished goods - demand on the basis of evidence including the statements of persons recorded and scrutiny of the records - HELD THAT:- On the basis of detailed investigation, Revenue has issued demand notice alleging clandestine manufacture and clearance of the goods. The evidence brought on record includes statements of various persons concerned, records withdrawn from the premises of the appellants etc.
The learned Commissioner has not recorded the reasons while analyzing these evidences in detail about its reliance and reliability vis-à-vis in arriving at the conclusion on the allegation of clandestine removal of the goods by the respondents. It seems that he has laid more emphasis that that the order ought to be reasoned one, finding and conclusion should be arrived at on the basis of analysis of evidence on record. Hence, in the absence of detailed reasoning, conclusion in the order cannot be sustained.
Matter remanded to the adjudicating authority to consider the evidences afresh and record reasons on the same in arriving at any conclusion as a result of analysis of the basis of evidences vis-à-vis the allegations leveled in the show cause notice - appeal allowed by way of remand.
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2020 (2) TMI 623 - CESTAT ALLAHABAD
CENVAT Credit - duty paying documents - endorsed invoices - eligible documents for the purpose of availment of Cenvat Credit or not - HELD THAT:- Admittedly an amount of ₹ 4,50,000/- was debited by th assessee from their Cenvat Credit account, during the pendency of the appeal. Whether such an accumulated credit could have been used by the assessee, during the relevant period or not, is not clear from the facts of the case. In other words if on account of such debit, which was on the basis of the objection raised by the revenue, the appellant was compelled to pay the duty, during the relevant period from their P/L account then the said refund of debited credit would be available to the assessee in cash - Inasmuch as, the said facts are not available on record, it is deemed fit to set aside the impugned order and remand the matter to Original Adjudicating Authority for verification of the said factual position.
Appeal allowed by way of remand.
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2020 (2) TMI 606 - CESTAT KOLKATA
Proportionate reversal of CENVAT Credit - dispute relates to availment of Cenvat Credit on same set of invoices twice and availment of input credit of duty more than the duty amount shown in the relevant invoices for the period 2014-15 - HELD THAT:- The Appellant has also produced a Chartered Accountant’s certificate showing the reversals made for the FY 2014-15 on account of following the procedure as per Rule 6(3) of the CCR, 2004. Also a verification report as submitted by the Range office of the Appellant is placed on record which shows that the Appellant has actually reversed Cenvat credit following the said process for FY 2014-15. From the above noted facts, I find that the Appellant cannot be asked to pay more than what it has actually availed.
The Appellant cannot be asked to reverse more than the actual Cenvat credit availed by the Appellant and based on the Chartered Accountant’s certificate and Range Officer’s report, there is no doubt as to the fact that the Appellant has actually followed the process of proportionate reversal under Rule 6(3) of the CCR, 2004. Thus, the demand is set aside on the above ground.
Imposition of penalty - HELD THAT:- The disputed amount had been paid before the issuance of the show cause notice, and the entire amount was paid along with interest. Therefore, the payment of duty in the instant case should have been treated as payment of central excise duty under Section 11A(2B) of the Act and the show cause notice should not have been issued. Additionally, the Revenue has not been able to prove beyond reasonable doubt the presence of fraud, collusion, willful misstatement or suppression of facts on the part of the appellant. Therefore, imposition of penalty under section 11AC of the Act is unwarranted.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 605 - CESTAT KOLKATA
Demand of Interest - whether the Commissioner (Appeal) was justified in demanding interest along with the duty as determined by the Adjudicating authority? - HELD THAT:- The matter went upto the Hon’ble Supreme Court for the demand of duty in respect of the earlier period where the Hon’ble Supreme Court decided the case on merit in favour of the Revenue and set aside the penalties.
Section 11AB deals with interest on delayed payment of duty. Sub Section (1) of Section 11AB provides that where any duty of excise has not been levied or paid etc. the person who is liable to pay the duty as determined under Sub-Section (2) or has paid the duty under sub Section (2) of Section 11A shall in addition to the duty, be liable to pay interest. The expressions “shall, in addition to the duty, be liable to pay interest” in Section 11AB(i) of the Act, 1944 as it stood during the relevant period make it clear that the liability to pay interest is linked with the delayed payment of duty as determined under Section 11A of the Act, 1944. The Commissioner (Appeals) proceeded on the basis of Section 11A(14) of the Act, 1944 which was not introduced, during the material period, but the Order of the Commissioner (Appeals) is required to be upheld, after analyzing Section 11AB of the Act 1944 as it stood during the relevant period.
There are no reason to interfere the order of the Commissioner (Appeals) - appeal dismissed - decided against appellant.
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2020 (2) TMI 604 - CESTAT KOLKATA
Demand of interest on interest - appellant is already sanctioned refund alongwith the interest - HELD THAT:- Section 11B of the Central Excise Act, 1944 provides for refund of duty paid. If the refund is not sanctioned within prescribed time limit, a provision has been made under Section 11BB for payment of interest. However, there is no provision for payment of interest on such interest if the interest itself was paid belatedly. The question of law which arises is when there is no explicit provision for payment of interest on interest, whether it can be paid.
This question of law was decided by Three Member Bench of the Apex Court in the case of COMMISSIONER OF INCOME TAX, GUJARAT VERSUS GUJARAT FLUORO CHEMICALS [2013 (10) TMI 117 - SUPREME COURT], in which, a batch of SLP were disposed off. Although the case pertains to the income tax, the question of law is identical to the present one inasmuch as where the interest on the refund is paid belatedly, whether the assessee is entitled to interest on such interest, in the absence of any explicit provisions of law for such payment.
The appellant is not entitled for interest on interest and there is no infirmity in the impugned order rejecting such a claim for interest on interest - Appeal dismissed - decided against appellant.
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2020 (2) TMI 603 - CESTAT CHANDIGARH
Clandestine removal - shortage of stock - demand based on electricity consumption - whether the demand is based on assumptions and presumptions or not - corroborative evidences or not - CENVAT credit - HELD THAT:- The rusted wire rods found during the course of stock taking an recorded in the panchnama have arisen out of the stock of wire rods recorded in the production records maintained by the respondents, and hence they continue to be part of the stock available with them. It is not the case of the department in appeal that this rusted stock have been accounted elsewhere in the production records as old and rusted wire rods in coil form/ scarp.
Commissioner is correct in his conclusion that the goods were entered in the production records maintained by the respondents only after quality inspection and clearance. During the period of demand it was for the respondent assessee to determine at which stage the he enters the finished goods in his production records unlike the earlier period when an RG-1 stage was prescribed by the department. There seem to be no error in the approach adopted by the respondent in entering the goods in the production records only after the completion of quality control checks. Undisputedly though production was happening on the national/ public holidays, the goods could not have been entered in the production records awaiting the quality inspection which would happen on subsequent days.
After comparing all the records and returns it is found that production declared by the respondents in the ER- 1 returns is higher than the production recorded in the private records. Nothing has been put forth in the appeal by the revenue that the findings and discussions are incorrect in any way. ER- return is the statutory return prescribed under Central Excise Law. If the total production declared in ER-1 return is higher than that computed production on the basis of private records, there are no merits in submission made by the revenue, that production in RG-1 register do not tally with private records. Hence the issue on this account is answered in favour of the respondents.
CENVAT credit - HELD THAT:- It may be pointed out that admissibility of CENVAT Credit is linked to the fact of receipt of duty paid inputs within the manufactory under the cover of duty paying document (viz invoice) - In the present case the demand for denial of Cenvat Credit is sought to be made on the basis of consumption, which is contrary to the scheme of Cenvat Credit Rules. Once there is no dispute about the actual receipt of duty paid inputs under the cover of duty paying documents, the Cenvat Credit cannot be denied subsequently by referring to consumption of the same.
Appeal dismissed - decided against Revenue.
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2020 (2) TMI 602 - CESTAT CHANDIGARH
Interest on delayed refunds - denial of interest for the pre-deposit before 06.08.2014 - relevant date for calculation of interest - HELD THAT:- The issue has been settled by this Tribunal in the case of M/S. MARSHALL FOUNDRY & ENGG. PVT. LTD., M/S. MARSHALL AUTO CAST PVT. LTD., M/S. MARSHALL FOUNDRY WORKS PVT. LTD., M/S. MARSHALL CASTING LIMITED AND M/S. MARSHAL ATUT INDUSTRIES LIMITED VERSUS COMMISSIONER OF CGST, FARIDABAD [2019 (11) TMI 1269 - CESTAT CHANDIGARH] where it was held that appellants are not entitled to claim interest on delay refund from the date of deposit till its realization.
The appellant is entitled to claim the interest on delay refund from the date of deposit till its realization - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 590 - GUJARAT HIGH COURT
Maintainability of appeal - Section 35G of the Central Excise Act, 1944 - eligibility for benefit of Exemption N/N. 39/2001-CE dated 31.07.2001 - goods manufactured on such plant and machineries that were installed after cut off date 31.12.2005 - expansion of the unit after cut-off date 31.12.2005 - extended period of limitation - HELD THAT:- Reliance can be placed in the case of COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE VERSUS M/S RATNAMANI METALS AND TUBES LTD. [2019 (9) TMI 1275 - GUJARAT HIGH COURT] where it was held that The applicability of Notification No.108/95-CE dated 28.8.1995 is subject matter of the appeal. Such notification has a direct bearing on the determination of the rate of duty for the purposes of assessment. Under the circumstances, in the light of the provisions of section 35G read with section 35L of the Central Excise Act, 1944, these appeals are not maintainable before this court.
The present Tax Appeal is not maintainable before this Court and the only remedy available to the revenue is to file an appeal before the Supreme Court under Section 35L of the Act 1944 - Appeal disposed off.
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2020 (2) TMI 541 - ALLAHABAD HIGH COURT
Maintainability of appeal - section 35G of the Central Excise Act, 1944, read with section 174 of the Central Goods and Services Tax Act, 2017 - rebate claim - HELD THAT:- A plain reading of the provision of law in section 35-G, being section 35-G(1) of the Central Excise Act, 1944 reveals that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal other than the exceptions as specified in section 35-G (1) only if the High Court is satisfied that the case involves a substantial question of law.
Appeal dismissed.
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2020 (2) TMI 514 - CESTAT BANGALORE
Refund of excess duty - manufacture of clinker and cement - appellant was required to pay the duty @ ₹ 350 PMT as per the Notification No.4/2007, since there was a confusion during the relevant time, they paid the duty @ ₹ 400 PMT and subsequently filed refund claim - HELD THAT:- In the present case, the appellant has supplied the cement to Government bodies i.e. M/s. AP Housing Corporation, Hyderabad - Further as per the N/N. 4/2007 which prescribes the rates of duty, the appellant’s case falls under Sl.No.1A which prescribes the rate of duty @ ₹ 350 PMT.
N/N. 4/2007 has prescribed different rates for different categories. Sl.No.1(A) prescribed the rate of ₹ 350/- PMT whereas the sl.No.1(C) prescribed the rate of ₹ 400 PMT. If the conditions laid down under a particular Sl.No. is satisfied, the manufacturer is allowed to manufacture goods prescribed against the said sl.no. Further, in this case, the goods were in packaged form being marked with the RSP and the price being less than ₹ 190 / bag even though the supply was to the Government undertaking and hence the rate applicable is only ₹ 350 PMT and not ₹ 400 PMT at which the appellant has paid the duty.
Refund allowed - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 499 - CESTAT NEW DELHI
Interest on differential payment of duty - price variation clause - matter was earlier repeatedly adjourned for awaiting the decision of Hon’ble Supreme Court in the case of Steel Authority of India Ltd. vs. CCE, Raipur. Hon’ble Apex Court vide Order dated 07.12.2015 in Steel Authority of India vs. CCE, Raipur [2015 (12) TMI 594 - SUPREME COURT] has already referred the matter to the Hon’ble Constitution Bench - HELD THAT:- Keeping in view that the Hon’ble Apex Court has decided the controversy involved in favour of the Revenue and against the assessee and also keeping in view the absence of the appellant as on date, I deem it fit to dismiss the appeal not only for want of presence of the appellant but also for no merits in this appeal, as issue stands already decided against the appellant/assessee.
Appeal dismissed.
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2020 (2) TMI 441 - CESTAT MUMBAI
CENVAT Credit - scope of SCN - process amounting to manufacture - allegation that the Appellants had not paid additional excise duty at each stage of manufacture of fabrics i.e. bleaching, dyeing and printing, which then subjected to captive consumption - HELD THAT:- This Tribunal, while remanding the matter to the learned Commissioner (Appeals), directed him to consider the benefit of MODVAT Credit and export benefit admissible to them. In the remand proceedings, the learned Commissioner (Appeals), though allowed MODVAT benefit relating to the process of bleaching and dyeing, but denied credit to the process of printing, observing that no further process thereafter being carried out, hence the Appellants are not eligible.
The demand has been calculated alleging that the Appellant had failed to discharge the duty at each stage of manufacture i.e. bleaching, dyeing and printing. In other words, while proposing to recover duty, the process of printing was also considered as a process of manufacture. Therefore, denying credit holding that the process of printing does not amount to manufacture, is contrary to the very basis of show cause-cum-demand notice, hence, cannot be sustained.
Credit allowed - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 399 - CESTAT MUMBAI
Reversal of refund order - principles of unjust enrichment - incidence of duty not passed on - HELD THAT:- First, there is no rule prescribed that in adjudication proceedings, documentary evidence that to of a public nature, was not to be accepted without examining the source, on the basis of which such documents has been prepared. Second, if the said document is not to be accepted, then there is no point in throwing the blame on the appellant for its failure to produce the same before him which, admittedly was a departmental report and could not be possibly accessed by the appellant unless supplied to it by the Department - It is not invariably true that when any amount is shown as expenditure or any expenditure is required to be made, the same has to be absorbed in costing of final product unless there is a proof that pricing of the final product has been specifically increased on that score, since there are various mechanisms available before the manufacturer to absorb the cost, say, by way of reducing profit margins of its sale, overhead expenditures of the company etc.
In the case on hand, it is acknowledged that there was no change in the price structure of the product immediately after payment of duty on protest - The appellant is entitled to get refund of ₹ 10,17,419/- alongwith interest as per Section 11BB of the Central Excise Act, 1944 to be calculated from three months after filing of the application of refund - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 395 - CESTAT HYDERABAD
Demand of Interest - CENVAT Credit “taken and utilised wrongly” instead of “taken or utilised wrongly” - HELD THAT:- It is true that the order of the Tribunal in the first round of litigation was not challenged by the appellant. This order had set aside the penalties and confirmed the demand partly to the extent of ineligible CENVAT credit on MS items used for shed amounting to ₹ 14,06,621/- along with interest. The order does not specify the manner in which the interest should be calculated or the period for which interest should be levied - There is no indication that the interest should be calculated up to 31st January 2013. There is also no indication in the order that the interest should be calculated only up to 16th March 2012. A plain reading of this order, therefore, shows that it was left to the lower authority to calculate interest as applicable under the Law.
The interest must be calculated as per law i.e. up to 16th March 2012 only in respect of CENVAT credit which has been taken but not utilised and thereafter only if CENVAT credit has been taken and also utilised - in respect of CENVAT credit which has been taken but not utilised and it should be calculated beyond this period only in respect of CENVAT credit which has been taken and also utilised.
The appeal is remanded to the original authority for the limited purpose of this computation.
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2020 (2) TMI 387 - CESTAT MUMBAI
Rectification of mistake - time limitation - Section 35C (2) of the Central Excise Act 1944 - plea of limitation ignored by Tribunal - HELD THAT:- There is no denial of the fact that the points raised concerning non-application of extended period of limitation has not been specifically dealt with and findings have not been placed on record on the same - Perusal of show cause notice would reveal that for contravention of provision of Rule 2 & 3 of Cenvat credit rule and Rule 4, 6, 8 & 11 of Central Excise Rules 2002, the demand was raised and it was confirmed in the OIO and OIA on the ground that appellant had suppressed the fact that they were availing Cenvat Credit of service tax on such service which was not rendered by them.
This being to the findings of the Tribunal, allowing rectification of mistake application so as to bring debatable points of law and fact for re-appreciation and analysis would defeat the purpose of the provision contained in the Central Excise Act for rectification of mistake and defeat the appeal procedure prescribed in the Statute too.
The application filed for rectification of mistake, being devoid of merit, is rejected.
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