AI Drafter 
TaxTMI 
TaxTMI 
2013 (3) TMI 478
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....om record arising from Order Nos. A/270-271/2012/EB/C-II, dated 27-3-2012 in Appeal No. E/671 & 801/2010-Mum. 2. The contention of the applicant is that the following grounds which have been mentioned in the appeal memorandum filed by them have not been considered by the Tribunal while passing the impugned order :- (a) In both the appeals, the ground of revenue neutrality which is at para 4.2 of Memorandum of Appeal in Appeal No. E/671/2010 and which is at para 5.2 in Appeal No. E/801/2010 has not been considered. (b) Hon'ble Tribunal has also not considered the ground that under Chapter X Procedure when the returns in form of RT-11 are filed with the Department (which is known as Annexure 46) the invocation of larger period is uns....
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....vat Credit of the duty payable on Naphtha. He further contended that the department was informed about the entire process of manufacture of fertilizers using Naphtha while applying for Chapter X Procedure under Rule 192 of the Central Excise Rules. Thereafter, with due scrutiny and inspection the CT-2 certificates were issued by the department. Therefore, they could not be charged to any willful suppression and the demand is substantially time-barred. 3.2 He further submitted that the ground of erroneous calculation of duty by the department has also not been considered by the Tribunal and the Tribunal erroneously confirmed the demand as per the Order-in-Original, which is incorrectly calculated. He also submitted that without considerin....
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....se the goods for manufacture of fertilizers, they cannot raise the point of limitation in their application and once there is a mis-declaration in their application in Chapter X Procedure regarding the value of the goods and rate of duty for manufacture of fertilizers, the imposition of penalty under Section 11AC also cannot be challenged. He, therefore, submitted that the applicant is seeking the review of the order in the guise of ROM application, which is not permitted under Central Excise law. He relied upon the decision of the Hon'ble Supreme Court in the case of Poothundu Plantations Pvt. Ltd. v. Agricultural I.T.C., Chittoor reported in 2004 (178) E.L.T. 16 (S.C.). 5. After hearing both sides, we find that in the ROM application f....
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....ishable in the facts of the case. 7. Learned Sr. Advocate also placed reliance on the Commissioner of Service Tax, Bangalore Yokogawa Blue Star Ltd. (supra), wherein the Hon'ble High Court of Karnataka has held that the Tribunal to consider the grounds urged by the party, but we find that in the present case the points raised in the ROM application were not urged by the applicant at the time of hearing of the application and in their written submissions submitted on the date of hearing. 8. The learned Sr. Advocate also relied upon the decision of the Hon'ble High Court of Rajasthan in the case of Commissioner of Income Tax v. Ramesh Chandra Modi reported in [2001] 249 ITR 323 (Raj.), wherein the Hon'ble High Court has observed in para....
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....uss the ground set up in appeal is undoubtedly a mistake apparent from the record. There being no controversy on the fact that the Tribunal completely omitted to consider the ground, in our opinion, the aforesaid question is not referable and, therefore, the application is dismissed." We find that in that case the arguments were addressed before the Tribunal on those points and the Tribunal has not discussed those grounds in its order and Court held it is a mistake apparent from the record. We find that the grounds taken in the ROM application were not argued before the Tribunal at the time of personal hearing. Therefore, this decision of the Hon'ble High Court of Allahabad is also distinguishable. 10. The applicant also relied upon t....