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2016 (7) TMI 492 - CESTAT AHMEDABAD

2016 (7) TMI 492 - CESTAT AHMEDABAD - TMI - Rectification of mistake (ROM) - issue involved is a refund matter - Revenue argued that there is no mistake apparent on the subject order of the Tribunal dated 30.12.2015. He submits that the applicant is trying to reopen the issue to have a rehearing of the matter which will amount to review of the order of the Tribunal, which is not permitted by the law. - Held that:- the issue has a chequered history and has passed through many rounds of litiga .....

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ate For Respondent (s) : Shri Sameer Chitkara, Authorised Representative ORDER Heard both sides. 2. This Rectification Of Mistake application is filed by M/s. Gujarat State Fertilizers & Chemicals Limited in respect of the Tribunal order No. A/11911/2015 dated 30.12.2015. The applicant submits that the findings of the Tribunal in the subject order dated 30.12.2015, at Para 5 that - there is no material available on record that they have produced the Chartered Accountant certificate before th .....

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not challenged the order of the Tribunal (i.e. the earlier order of the Tribunal dated 24.05.2005) before the higher appellate authority, which is not legally correct as the appellant cannot be barred from taking up other pleas during the remand proceedings. 3. On the other hand, ld. Authorised Representative for the Revenue argued that there is no mistake apparent on the subject order of the Tribunal dated 30.12.2015. He submits that the applicant is trying to reopen the issue to have a rehear .....

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No. OIA/338/VDR/99 dated 15.10.99. Further proceedings in this matter, after travelling up to High Court once and Tribunal thrice resulted in the order of Tribunal No. A/460/WZB/05/C-II dated 24.5.2005. By the said order, the Tribunal remanded the matter to the adjudicating authority as the appellant had undertaken to produce the certificate from the Government to the effect that duty on methane was taken into account while fixing the price of the fertiliser. The Tribunal observed that the appel .....

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idence of duty has not been passed on to the buyers. The Commissioner (Appeals) vide the Order-in-Appeal dated 29.08.2008 upheld the said Order-in-Original. The appellants filed appeal before the Tribunal which was disposed of by the subject order of the Tribunal dated 30.12.2015. The Tribunal, in the said order dated 30.12.2015 held as follows:- 5. It is clear from the above order of the Tribunal that the appellant submitted that they will produce the requisite certificate from the Govt. author .....

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appellants had given an undertaking before the Tribunal that they will produce the certificate from the Govt. There is no material available on record that they have produced the Chartered Accountant certificate before the Adjudicating authority in denovo proceeding. The Commissioner (Appeals) observed that they have produced the certificate with the Appeal Memorandum. He further, observed that it is a certificate typed on computer on a plain paper having no signature, date or name and address .....

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venue should issue the show cause notice under Section 11A of the Central Excise Act 1944. We find that the present de-novo proceeding was initiated in terms of the order of the Tribunal. This issue was not raised before the Tribunal in the earlier occasions. It is also noticed that the appellant had not challenged the order of the Tribunal before the higher appellate authority. We find both the authorities had examined the matter as per the directions of the order of the Tribunal. So, there is .....

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