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2015 (5) TMI 1025 - CESTAT NEW DELHI

2015 (5) TMI 1025 - CESTAT NEW DELHI - 2015 (329) E.L.T. 263 (Tri. - Del.) - Rectification of error apparent from record filed under Section 35C(2) - Held that:- Provisions of Rule 34(a) of SWM(PC) Rules have not been considered and the letter dated 13-5-2004 and 28-2-2004 of the legal metrology department addressed to the appellant wherein the appellant had been informed that the tiles supplied by them to building contractors, builders, Hotels, Hospitals Housing ‘Societies etc. are not exempt f .....

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l hearing has been considered by the Tribunal and not accepted, whether rightly or wrongly, this cannot be treated as a mistake apparent from record needing rectification under Section 35C(2). Mistake apparent from record would occur only when a specific plea has been made and has not been considered at all. Under the provisions of Section 35C(2) the Tribunal cannot go into the question of the correctness or otherwise, of the Tribunal’s decision on a particular plea made by the Appellant. In the .....

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identical issue was involved and the Tribunal in that case had held that in respect of supplies of tiles to builders, real estate developers etc. where the tiles had been supplied in retail packs with MRP declared on them and there was no declaration on the packages that the goods are meant for industrial buyers and are not meant for retail sails, the provisions of SWM(PC) Rules would be applicable and the assessable value of such goods would be required to be determined under the provisions of .....

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record filed under Section 35C(2) of Central Excise Act, 1944 in respect of Final Order No. 53154/2014, dated 8-8-2014 [2014 (309) E.L.T. (Tri.-Del.)] passed by the Tribunal by which the Tribunal had upheld the Commissioner s order impugned in this appeal and as such had rejected the appeal. 2.  The appellant are manufacturers of glazed tiles falling under sub-heading 6905.10/6906.10 of the Central Excise Tariff and the same are notified under Section 4A of the Central Excise Act, 1944 for .....

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under Section 4A that is on the basis of MRP minus abatement. The department s case is that in respect of the tiles supplied to the various bulk buyers - builders, contractors, industrial buyers etc. there was no requirement to declare the MRP in terms of the provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 [hereinafter referred and hence the duty in respect of these clearances was required to be paid on the transaction value. It is on this basis that 6 show .....

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Section 11AC and another penalty of ₹ 15,00,000/- was imposed on them under Rule 25 of the Central Excise Rules, 2002. 3. Against the above order of the Commissioner this appeal was filed, which was heard by Tribunal on 12-12-2013 and vide order dated 8-8-2014 pronounced in the open Court, the appeal has been dismissed. The ROM has been filed in respect of the Tribunal s final order dated 8-8-2014 on the following three grounds. (1) The appellant had specifically pleaded that in .....

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industrial buyers there was no such markings mentioning the tiles as for the exclusive use of that industry and not for retail sale and, therefore, the tiles supplied were not exempt from the provisions of SWM (PC) Rules and as such the MRP was required to be declared and, therefore, the duty has been correctly paid on the value determined under Section 4A. But this plea has not been considered by the Tribunal at all. (2) The appellant had specifically pointed out to Bench and had pleaded .....

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ndustrial buyers, then the product is exempt from the provisions of SWM(PC) Rules but if he does not prefer to make such markings, the provisions of SWM Act and the SWM(PC) Rules would be applicable even if the goods are used as raw-material for the industry. Besides this, the legal metrology department under letter dated 28-2-2005 had advised the appellant that in their case there is no exemption from declaring MRP on the tiles supplied to builders, contractors, hotels, etc. as they have not ma .....

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ent in the case of H & R Johnson (India) Ltd. v. CCE, Raigad [Final Order Nos. A/330-332/2014(EB) dated 2-5-2014 reported in 2014-TIOL-845 CESTAT-MUM = 2014 (306) E.L.T. 645 (Tribunal)] wherein an identical issue was involved and the Tribunal in that case had held that in respect of the glazed tiles supplied to industrial users in the packages which were not marked meant for industrial use not for retail sale there was requirement to declare MRP and the duty would be payable on the value det .....

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& R Johnson (India) Ltd. v. CCE, Raigad wherein it was held that in respect of supplies of tiles in retail packs to industrial buyers the assessee would be required to declare MRP on the retail packs as per the provisions of SWM (PC) Rules if the packings in which the tiles were supplied were not marked as meant for industrial buyers, not for retail sale , and the assessable value would be required to be determined under Section 4A has been affirmed by the Apex Court vide order dated 5-12-20 .....

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para 6 of which it has held that though in the context of decisions of the Apex Court and the jurisdictional High Courts which are rendered after the order of the Tribunal, the doctrine of per incuriam cannot be invoked, yet there would be error apparent from the records of such order on the reasoning that the superior Court declared the law as it always was and, therefore, the question whether there was error apparent from record of the order (which could not have taken into consideration, such .....

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ord which has to be rectified. Shri Narasimhan, therefore, pleaded for rectification of the above mistake apparent from record. 6. Shri Ranjan Khanna, the ld. D.R., vehemently opposed the appellants plea for recall of the Tribunal s order and pleaded that the Tribunals order does not suffer from any mistake apparent from record. With regard to the appellant s plea that the provisions of Rule 34(a) of the SWM(PC) Rules have not been considered by the Tribunal, Shri Khanna pointed out to the .....

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unal s findings in para 16 of the order wherein the letter dated 13-5-2004 of the Metrology Department, Jhajjar has specifically considered and the Tribunal after taking into account this letter has held that the Commissioner rightly came to the conclusion that there was no requirement for declaring the MRP in respect of tiles supplied to builders, building contractors, Industrial buyers, hotels etc. Shri Khanna pleaded that once the Tribunal had considered the pleas made by an appellant, even i .....

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unal is not bound to consider each and every judgment which is cited by the appellant and omission to take into account this judgment cannot be considered as a mistake apparent from record. 7. We have considered the submissions from both the sides and perused the records. 8. With regard to the appellants plea that the provisions of Rule 34(a) of SWM(PC) Rules have not been considered and the letter dated 13-5-2004 and 28-2-2004 of the legal metrology department addressed to the appella .....

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tment Jhajjar has been considered in para 16 of the Tribunal s order. Once a plea made by the appellant in the grounds of appeal and at the time of personal hearing has been considered by the Tribunal and not accepted, whether rightly or wrongly, this cannot be treated as a mistake apparent from record needing rectification under Section 35C(2). Mistake apparent from record would occur only when a specific plea has been made and has not been considered at all. Under the provisions of Section 35C .....

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to the judgement of Bombay Bench of the Tribunal in the case of H & R Johnson (India) Ltd. v. CCE, Raigad reported in 2014-TIOL-845-CESTAT-Mum = 2014 (306) E.L.T. 645 (Tri.-Mumbai) wherein an identical issue was involved and the Tribunal in that case had held that in respect of supplies of tiles to builders, real estate developers etc. where the tiles had been supplied in retail packs with MRP declared on them and there was no declaration on the packages that the goods are meant for industri .....

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he Apex Court s order was passed on 5-12-2014, that is, after the date of pronouncement of the Tribunals order on 8-8-2014, in view of Larger Bench judgment of the Tribunal in the case of Hindustan Liver Ltd. v. CCE (supra) the Tribunal s judgment dated 8-8-2014 would have to be treated as suffering from a mistake apparent from record. In this regard, para 6 of the Larger Bench judgment in the case of Hindustan Liver Ltd. is reproduced below :- 6. When a decision rendered by the Apex Court .....

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However, though in context of the decisions of the Apex Court and the jurisdictional High Courts which are rendered after the order of the Tribunal, the doctrine of per incuriam cannot be invoked, yet there would be error apparent from the record of such order on the reasoning that the superior Court declared the law as it always was, and therefore, the question whether there was error apparent from the record of the order, (which could not have taken into consideration, such subsequent decision .....

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Tribunal, which though it could not have taken such decision into consideration, should be examined in the light of the meaning given by the binding decision, warranting rectification on the ground that there was error apparent from the record in not following the law as now declared. We are aware that a very alarming situation can arise because any subsequent binding precedent may trigger enquiries into the various decided cases where orders have been passed without having the benefit of subseq .....

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r case, shall not be a ground for the review of such judgment. Though the provision has been made in the context of review, rectification on the basis of a subsequent decision of the Supreme Court, may bring about a total change in the nature of the order and virtually be a review. 9.1 In this regard, Shri Ranjan Khanna, the ld. DR pleaded that the issue involved in this case is covered in favour of the Department by the Apex Court judgement in the case of Jayanti Food Processing (P) Ltd. v .....

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