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2015 (5) TMI 1025

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..... eeding 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 ROM proceedings the Tribunal can consider only these points which as per the records of the case, had been raised and the Tribunal had omitted to consider these points and give its findings on them. The third mistake apparent from record pointed out by the appellant is that in the written submissions they had specifically pointed out to the judgement of Bombay Bench of the Tribunal in the case of H & R Johnson (India) Ltd. v. CCE, Raigad (2014 (6) TMI 453 - CESTAT 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 industrial buyers and are not meant for retail sails, the pro .....

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..... -in-Original dated 31-1-2006 by which the above mentioned duty demands totalling to ₹ 1,49,08,911/- were confirmed against the appellant alongwith interest on it under Section 11AB and besides this, penalty of ₹ 1,11,01,225/- was imposed on them under 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 terms of the provisions of Rule 34(a) of the SWM (PC) Rules except for the exception mentioned in its proviso, nothing in these rules shall apply to any package containing a commodity if the markings on the package unambiguously indicate that it has been specifically packed for the exclusive use of any industry as a raw-material or for the purpose of servicing any industry, mine or quarry and that it is not in dispute that on the packa .....

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..... ages 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 determined under section 4A. However, this judgment of the Tribunal has not been considered at all in the Tribunal s order. 4. Heard both the sides. 5. Shri B.L. Narasimhan, Advocate, the ld. Counsel for the appellant reiterating the points raised in the ROM application pleaded that there are mistakes apparent from record in the order passed by the Tribunal and hence the same have to be rectified under Section 35C(2). He pleaded that the Tribunal judgnnent dated 2-5-2014 in the case of H 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 5-12-2014 [2015 (319) E.L.T. A227 (S.C.)] by which the Ap .....

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..... he Tribunal, Shri Khanna pointed out to the Tribunal 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 if according to the appellant, the Tribunal s findings are wrong, the Tribunal s decision on these pleas cannot be treated as mistake apparent from record and cannot be rectified by filing an application under Section 35C(2) as the same cannot be said to be mistake apparent from record with regard to not considering the judgement of Bombay Bench of the Tribunal in the case of H R Johnson (India) Ltd. v. CCE, Raigad which has been affirmed by the Apex Court, Shri Khanna pleaded that the Tribunal 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 a .....

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..... SWM(PC) Rules would be applicable and the assessable value of such goods would be required to be determined under the provisions of Section 4A. This judgment of the Tribunal had been affirmed by the Apex Court by dismissal of Civil Appeal vide order dated 5-12-2014 [2015 (319) E.L.T. A227 (S.C.)]. Once the Tribunals judgment is affirmed by the Apex Court by dismissal of Civil Appeal, the same becomes a binding precedent and though the 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 is not considered, it is obvious that non-consideration of such binding precedent would constitute an error apparent on the face of the record, by the applicability of the doctrine of per incuriam. In cases where due to inadvertence or oversight, Court or Tribunal .....

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..... t 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. CCE, Rajasthan reported in 2007 TIOL 150 SC CX = 2007 (215) E.L.T. 327 (S.C.). However, we find that this judgment of the Apex Court has been considered by the Tribunal in its judgment dated 2-5-2014 in the case of H R Johnson India Ltd. (supra) and had been distinguished as the dispute in the present case and in the case of H R Johnson India Ltd. is not whether supplies of tiles to builders, building contractors etc. are for exclusive use of any industry as raw-material or for the purpose of serving any industry but whether the provisions of SWM(PC) Rules would be applicable when the packagers of the tiles supplied to builders, building contractors etc. were not marked as per the requirement of Rule 34(a) and the Tribunal held that there would be no exemption from the provisions of SWM(PC) Rules. Once the Tribunal s judgment in the case of H R Jo .....

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