2014 (3) TMI 523 - AT - Central Excise

Tribunal dismisses department's rectification application, citing lack of new evidence.

Vantech Chemicals Ltd. Versus The Commissioner of Customs, Central Excise and Service Tax Hyderabad

The Tribunal rejected the department's application for rectification of an apparent mistake in the Final Order, emphasizing that the essential facts were ... Rectification of mistake - Revenue contends that appellant ought to have applied for remission of duty in respect of the control samples of pesticides which became unfit for consumption/marketing after the expiry date - Held that:- The bench also considered the fact that none of the control samples was cleared from the factory for testing or for any other purpose whatsoever. It was in this scenario that the decision in Positive Packaging Industries case was taken into account. The decision is to the effect that duty should be paid by the manufacturer, unless exempted by any notification, once the samples are cleared from the factory. In the said case, samples were cleared from the factory for testing quality unlike in the instant case where the practice was to test the control samples, if need be, in an in-house laboratory, which procedure did not involve any clearance of the goods from the factory - What is said to be apparent mistake does not exist in this case. Moreover, the application appears to have made an attempt to re-argue their case, which is beyond the scope of Section 35C (2) of the Central Excise Act. An error to be rectified under this provision should be one manifest on the record and should not be one which may be brought out through a long-drawn process of arguments - Decided against revenue. Issues:Rectification of apparent mistake in Final Order No. 440/2012 dated 06.07.2012 passed by the bench.Analysis:The department filed an application seeking rectification of an apparent mistake in the Final Order passed by the bench. The Superintendent (AR) submitted that a decision in Positive Packaging Industries Ltd. Vs. CCE, Raigad favored the department but was mentioned in the Final Order in a context favorable to the appellant. He argued that the appellant should have applied for remission of duty for control samples of pesticides that were destroyed without intimation to the department. The Superintendent also highlighted the appellant's failure to account for test samples and maintain proper records. However, the Tribunal found the plea for modification of the Final Order unconvincing, noting that the essential facts of the case were already considered during the hearing. The Tribunal explained that the decision in Positive Packaging Industries case was not applicable as the samples in question were not cleared from the factory for testing, unlike in the cited case. The Tribunal also observed that the arguments based on Rule 21 of the Central Excise Rules were beyond the scope of the show-cause notice issued in this case.The Tribunal rejected the application, stating that the alleged apparent mistake did not exist and that the application seemed to be an attempt to re-argue the case, which was beyond the scope of Section 35C (2) of the Central Excise Act. The Tribunal clarified that an error to be rectified under this provision should be evident on the record and not require a lengthy process of arguments. Consequently, the application seeking rectification was dismissed by the Tribunal.