2022 (1) TMI 58 - AT - Central Excise

Tribunal rejects Revenue's applications, upholds original order, citing lack of merit in arguments.

The Tribunal dismissed all applications filed by the Revenue, including the application for early hearing of the rectification of mistake and the ... Rectification of mistake - mistake apparent on the face of record - interest on delayed refunds under section 35F/35FF of the Central Excise Act, 1944 - HELD THAT:- There is no mistake apparent on face of record but by filing this application for rectification of mistake, the applicant is seeking to challenge the merits of the order dated 07.01.2020 to recall the same which is not permissible in law as the same shall amounts to review of its own order - In the absence of any mistake apparent on face of record, the application of rectification of mistake is not entertainable. Accordingly, the application of rectification of mistake is dismissed. The provisions of Section 142 of CGST Act, 2017 clearly show that every claim of refund, every proceeding of appeal, review or reference filed/initiated whether on or before the appointed day i. e. 1.7.2017 under the existing law which means the jurisdiction for the purpose of every claim of refund, every proceeding of appeal, review or reference before this Tribunal shall be dealt under the provision Central Excise law and not by the provision of CGST law. As per the order dated 13.7.2012, the appellant falls under the jurisdiction of DC Range Panipat and the DC Range, Panipat is under the jurisdiction of the Commissioner of CGST, Panchkula. There are no merit in the ROM application as well as miscellaneous application for modification in the ROM application filed by the Revenue - applications filed by the revenue are dismissed. Issues Involved:1. Application for early hearing of the application for rectification of mistake.2. Application for rectification of mistake against the final order dated 07.01.2020.3. Miscellaneous application for modification of the application for rectification of mistake to correct the respondent's jurisdiction.Issue-wise Detailed Analysis:1. Application for Early Hearing of the Application for Rectification of Mistake:The Revenue filed an application for early hearing of the application for rectification of mistake. However, since the application for rectification of mistake was already listed for hearing on the same day, the application for early hearing became infructuous and was dismissed.2. Application for Rectification of Mistake Against Final Order Dated 07.01.2020:The Revenue sought rectification of the final order dated 07.01.2020, arguing that the Tribunal had relied on incorrect legal precedents and there were mistakes apparent on the face of the record. The Revenue contended:- The Tribunal wrongly relied on the case of M/s. Sandvik Asia Ltd. vs. CIT Pune, which dealt with the Income Tax Act, not the Central Excise Act.- The Supreme Court in Sandvik Asia Ltd. allowed interest from the date of deposit under specific sections of the Income Tax Act, which do not apply to the Central Excise Act.- The Tribunal incorrectly applied the decision in UCAL Fuel Systems Pvt. Ltd., which was contrary to the provisions of the Central Excise Act.- The Tribunal should have considered the Apex Court's decisions in cases like M/s. Kay Pan Fragrance Pvt. Ltd. and Creative Industries Pvt. Ltd., which clarified that interest based on equity is beyond the Tribunal's powers.- The Tribunal's order did not consider the latest decisions and statutory provisions correctly.During arguments, the Revenue also relied on the Supreme Court's decision in Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd., which defined 'error apparent on the face of the record.' The Tribunal found that the application did not show any mistake apparent on the face of the record but rather sought to challenge the merits of the order, which is not permissible as it amounts to a review of its own order. Consequently, the application for rectification of mistake was dismissed.3. Miscellaneous Application for Modification of the Application for Rectification of Mistake:The Revenue filed a miscellaneous application to modify the application for rectification of mistake, arguing that the correct respondent should be the Commissioner of CGST & CE, Rohtak, not Panchkula. The Revenue contended that the appellant fell under the jurisdiction of CGST, Rohtak, after 01.07.2017, and the Commissioner of CGST, Rohtak, had not been heard in the matter.The appellant/respondent countered that the issue of jurisdiction was never raised earlier and that the Tribunal does not have the power to hear the issue of jurisdiction at this stage. It was also argued that the jurisdiction of the appellant/respondent lies with CGST, Panchkula, based on historical jurisdictional assignments and ongoing proceedings.The Tribunal considered the arguments and referred to Section 142 of the CGST Act, 2017, which deals with transitional provisions. The Tribunal concluded that every claim for refund and every proceeding of appeal, review, or reference filed/initiated before or after the appointed day (01.07.2017) should be disposed of under the provisions of the existing law (Central Excise law) and not under the CGST law. As per the order dated 13.07.2012, the appellant falls under the jurisdiction of DC Range Panipat, which is under the Commissioner of CGST, Panchkula. Therefore, the Tribunal found no merit in the ROM application or the miscellaneous application for modification and dismissed all applications filed by the Revenue.Conclusion:All applications filed by the Revenue were dismissed, and the Tribunal upheld its original order dated 07.01.2020.