TMI Blog2012 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled under Rule 18 of Central Excise Rules, 2002, as the processed tiles had been exported. This plea, in our view is not relevant to the issue involved in this case - admissibility of Cenvat credit of duty paid on rough tiles, as for the reasons given below, considering or not considering this plea will have not bearing on the final decision. f according to the appellant a contrary view is possible on this issue, the point raised would not satisfy the criteria for treating the same as “mistake apparent from records” - Misc. application rejected. - E/2363/2005 - 472/2012-EX(BR)(PB) - Dated:- 2-5-2012 - Justice Ajit Bharihoke, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri D.K. Tyagi, Advocate, for the Appellant. Shri Sanjay Jain, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. This is an application for rectification of mistake apparent from records, filed under Section 35C(2) of the Central Excise Act, 1944, in respect of Final Order No. 368/2011-EX dated 28-4-2011 [2011 (274) E.L.T. 460 (Tri.)] by which the appeal had been dismissed. 2. The appellant are a manufacturer of aluminium alloy ingots chargeable to Central excise duty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Commissioner or Commissioner (Appeals) , are factually incorrect as is clear from para 4(2)(iii) of the order-in- appeal of CCE (Appeals), such a plea had been made. 2. Heard both the sides. 3. Shri D.K. Tyagi, Advocate, the learned Counsel for the appellant, pleaded that as is clear from para 4 (2) (iii) of CCE (Appeals) s order, the plea regarding admissibility of rebate of duty paid on crude tiles under Rule 18 of the Central Excise Rules, as the finished tiles had been exported out of India, had been made before the CCE (Appeals), in the Tribunal s final order it has been wrongly recorded that no such plea had been made, that in the grounds of appeal before the Tribunal also, one of the ground is that even if the process on crude tiles is not treated as manufacture, since the processed tiles had been exported, the appellant would be entitled to rebate under Rule 18 of the duty on crude tiles and the input duty rebate admissible is the same as the Cenvat credit sought to be denied, that if this plea had been considered, the decision of the Tribunal would have been different, that when input duty rebate under Rule 18 is the same as the input duty Cenvat credit, and when o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he final proof of export have been accepted and therefore, the credit denied remains available as rebate under Rule 18 of Central Excise Rules which may be allowed in case of the denial of credit is upheld. As such there remain no revenue implication in this case and therefore, the demand of credit may be quashed. Thus the alternative submission of the appellant is that even if their process does not amount to manufacture, since the processed tiles had been exported, input duty rebate under Rule 18 i.e. rebate of duty on rough tiles must be allowed, if denial of Cenvat credit is upheld or if rebate is not allowed, the Cenvat credit demand must be quashed. 5.1 Para 2.1 of the Final order dated 28-4-2011 records that the appellant have not made plea regarding cash refund of Cenvat credit under Rule 5 of Cenvat Credit Rules, 2002 before CCE (Appeals). The appellant pleaded that they had made such a plea before CCE (Appeals), though of admissibility of input duty rebate under Rule 18 before CCE (Appeals) as is clear from para 4(2)(iii) of CCE (Appeals) s order. This plea has obviously not discussed in the order. The point to be decided is as to whether this would amount to a mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or point of fact made on record, which is relevant to the issue and has bearing on the final decision, would constitute an error apparent from records. But all such points have been considered, their correctness cannot be challenged by an ROM application. 7. In this case, the point of dispute is eligibility of Cenvat credit of duty paid on rough tiles i.e. rough aluminium die cast tiles which were subjected to the process of cleaning, buffing, electroplating etc. In the final order, after holding that these processes do not amount to manufacture, it has been held that Cenvat credit is not admissible. Thus on the basic issue involved in this case i.e. whether the appellant s processes on rough tiles amount to manufacture there is no scope for rectification and the question of admissibility of Cenvat credit is linked with this question only. 8. The alternative plea which had been made and not considered, is that even if the appellant s process does not amount to manufacture, Cenvat credit of duty on rough tiles must be allowed by quashing the impugned order of CCE (Appeals), as the amount of Cenvat credit of duty on rough tiles which has been denied is the same as the rebate of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
