TMI Blog2015 (11) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... ase laws as relied upon by the Applicant and follow the decision of the Larger Bench of the Tribunal, are debatable issues and therefore, it cannot be a mistake apparent on the face of records. It is well settled that the Tribunal is not empowered to review/recall its earlier order and substituting the same by a different order. - No merit in appeal filed - Decided against Assessee. - Application No.E/ROM/10536/2015 In Appeal No.E/1070/2010-SM - Order No. M/11297/2015 - Dated:- 13-11-2015 - MR. P.K. DAS, MEMBER (JUDICIAL) For the Petitioner : Shri J.C. Patel, Advocate For the Respondent: Shri Jitendra Nair, Authorised Representative ORDER Per: P.K. Das The Applicant filed this application for rectification of mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records, the relevant portion of the Final Order dt.17.03.2015 is reproduced below:- 9. After hearing both the sides and on perusal of the records, I find that the assessee received the capital goods in the factory premises on 12.05.1997 and 12.05.1998. They had utilized the imported capital goods for manufacturing of the final product which was exempted from duty under Notification No.4/1997, dt.01.03.1997. The said notification was rescinded and replaced by Notification No.5/1998-CE, dt.03.06.1998. The appellants started payment of duty. On 17.03.1999, the assessee availed the CENVAT Credit in RG-23 C Part II on the capital goods which were received in May 1997 and May 1998 and also used in the manufacture of the exempted goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used in the manufacture of such goods have been availed by the manufacturer under Rule 57A of Central Excise Rules 1944. He strongly relied upon the decision of Honble High Court in the case of S.T. Cottex Exports Pvt.Ltd (supra). In that case, by virtue of Notification No.29/2004-CE, optional 4% duty was payable on the manufactured goods and it cannot be said that the assessee used the capital goods in the manufacture of exempted goods, in such case, the assessee could not claim the benefit of CENVAT Credit under Rule 6(4) of the CENVAT Credit Rules, 2004. The facts in the case of Oswal Woolen Mills Ltd (supra) and Eastman Spinning Mills Ltd (supra) are similar to the decision of S.T. Cottex Exports Pvt.Ltd. In the case of Kailash Auto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as cited by the Appellant. It has also followed the decision of the Larger Bench of the Tribunal in the case of Spenta International Ltd (supra). 5. The Tribunal, after considering the facts of the case, had come to a conclusion that the Applicant used the capital goods for manufacturing the exempted finished goods. This is supported by the statement of Shri Nalin Desai, Chief Manager of the Applicant. For proper appreciation, the relevant portion of the statement of Shri Nalin Desai is reproduced below:- A statement of Shri Nalin Desai, Chief Manager of the Assessee was recorded under Section 14 of the Central Excise Act, 1944 on 22.12.2003 by the Superintendent of Central Excise, Range-III, North Daman Division, Daman. In the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Siel Power Products Ltd Vs CIT Delhi 2008 (221) ELT 11 (SC). In that case, the Honble Supreme Court observed that when the Tribunal acknowledged its mistake, it has to be rectified accordingly in its order. In the case of CCE Kolkata Vs A.S.C.U. Ltd 2003 (151) ELT 481 (SC), as relied upon by the learned Advocate, the Honble Supreme Court observed that the mistake apparent on the face of the record must be an obvious and patent mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible. The decision on debatable point of law also cannot be treated as mistake apparent from the records. In the present case, the factual dispute on use of capital goods and non-consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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