2017 (3) TMI 498 - AT - Central Excise

Tribunal denies rectification request on duty payment treatment, citing lack of review power

Lohia Polyester Limited Versus C.C.E. & S. Tax, Surat

The Tribunal rejected the application for rectification of mistake regarding the treatment of duty payment as a pre-deposit for refund eligibility. The ... Rectification of mistake - appellant claims that even though they had argued that duty which was paid by them being disputed, therefore be considered as pre-deposit, but considering the same as duty, this Tribunal has recorded a finding that refund cannot be made unless it is established that the burden of duty has not been passed on to others - Held that: - this is not an apparent mistake, but would result in review of the order passed by the Tribunal - The power to review its order is not vested with the Tribunal - ROM application rejected. Issues:Rectification of mistake in the Tribunal's order regarding the treatment of duty payment as pre-deposit for refund eligibility.Analysis:The application sought rectification of a mistake in the Tribunal's order dated 30.8.2016 regarding the treatment of duty payment as pre-deposit for refund eligibility. The appellants argued that the duty paid by them, being disputed, should be considered as a pre-deposit. However, the Tribunal had recorded a finding that a refund cannot be made unless it is established that the burden of duty has not been passed on to others. The appellants contended that this aspect needed correction in the order, citing relevant case laws to support their argument.The Advocate for the appellants relied on case laws such as Honda Siel Power Products Limited vs. Commr. of Income Tax, Delhi (2008), Kumarakam Lake Resorts vs. C.C., Kochi (2015), C.C.E. & Cus, Valsad vs. Atul Ltd. (2016), C.C.E., Mumbai vs. Bharat Bijlee Limited (2006), and Associated Cement Companies Limited vs. C.C.E., Bhopal (2012) to support their argument for rectification of the mistake in the Tribunal's order.On the other hand, the A.R. for Revenue argued that the Tribunal, after considering all aspects of the case and referring to decisions of the Hon’ble Supreme Court in relevant cases, upheld the order of the ld. Commissioner (Appeals). The A.R. contended that reconsideration of the arguments advanced by the Advocate would amount to a review of the order, which the Tribunal was not empowered to do. The A.R. referred to the decision of the Hon’ble Supreme Court in C.C.E., Belapur, Mumbai vs. RDC Concrete (India) P. Ltd. (2011) to support this stance.The Tribunal, in its analysis, agreed with the A.R. for Revenue, citing the observations of the Hon’ble Supreme Court in a specific case. The Tribunal noted that the power to review its order was not vested with it, as doing so would exceed its powers and involve re-appreciation of evidence and reconsideration of legal views. Therefore, the Tribunal concluded that the prayer made by the Advocate would touch the core of the matter and would require reassessment of facts and legal questions, which was not permissible without the power to review the order. As a result, the Tribunal rejected the application for rectification of mistake.