Rectification of mistake allowed where an earlier Tribunal order inadvertently revived a penalty not actually in issue.

A rectification of mistake application was maintainable where the Tribunal's earlier order had set aside the first appellate order in entirety and thereby revived a penalty that was not in dispute before it. The underlying dispute concerned denial of Cenvat credit on inputs and capital goods used in mines, along with a penalty imposed under the Cenvat Credit Rules, 2002 read with the Central Excise Act, 1944. Because the department had not challenged the setting aside of penalty and the penalty issue was not before the Tribunal, the earlier order contained an apparent mistake on the record. The rectification application was allowed.

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Issues: Whether the rectification of mistake application should be allowed where the Tribunal's earlier order had set aside the first appellate order in entirety and thereby revived a penalty that was not in issue before it.

Analysis: The lower authority had denied Cenvat credit for inputs and capital goods used in mines and had imposed penalty under Rule 13 of the Cenvat Credit Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. The first appellate authority partly allowed credit and set aside the penalty. The earlier Tribunal order, while dealing with the credit dispute, had set aside the appellate order in entirety. That result had the effect of reviving the penalty even though the department had not challenged the setting aside of penalty and the penalty issue was not before the Tribunal.

Conclusion: The mistake was apparent on the face of the record and the rectification application was allowed.

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