TaxTMI 
TaxTMI 
2015 (5) TMI 1025
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....lared MRP minus abatement as specified in the Notification. The dispute in this case is in respect of the tiles supplied to the various bulk buyers - builders, contractors, hotels, schools, etc. There is no dispute that the tiles had been supplied to these category of buyers packed in retail packing with MRP declared on the same. The appellant had paid duty in respect of these tiles on the value determined under Section 4A that is on the basis of MRP minus abatement. The department's case is that in respect of the tiles supplied to the various bulk buyers - builders, contractors, industrial buyers etc. there was no requirement to declare the MRP in terms of the provisions of the "Standards of Weights and Measures (Packaged Commodities)" Rules, 1977 [hereinafter referred and hence the duty in respect of these clearances was required to be paid on the transaction value. It is on this basis that 6 show cause notices were issued to the appellant for demand of differential duty amounting to Rs. 1,49,08,911/- for the period from January, 1999 to December, 2004. These show cause notices were adjudicated by the Commissioner vide Order-in-Original dated 31-1-2006 by which the above mentione....
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....) Rules would be applicable even if the goods are used as raw-material for the industry. Besides this, the legal metrology department under letter dated 28-2-2005 had advised the appellant that in their case there is no exemption from declaring MRP on the tiles supplied to builders, contractors, hotels, etc. as they have not marked the packages as per the requirement of Rule 34(a) and in view of this, the appellant were required to declare MRP on the packages of the tiles supplied to builders, building contractors, housing societies, Hospitals, etc., and hence the duty has been correctly paid on the value determined under Section 4A. However this plea has not been considered at all by the Tribunal. (3) The appellant had submitted a written submission wherein they had brought to the notice of the Tribunal's judgement in the case of H & R Johnson (India) Ltd. v. CCE, Raigad [Final Order Nos. A/330-332/2014(EB) dated 2-5-2014 reported in 2014-TIOL-845 CESTAT-MUM = 2014 (306) E.L.T. 645 (Tribunal)] wherein an identical issue was involved and the Tribunal in that case had held that in respect of the glazed tiles supplied to industrial users in the packages which were....
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....ing decisions were passed, that in view of this, the non-consideration of the Tribunal's judgement in the case of H & R Johnson India Ltd. (supra) which has been affirmed by the Apex Court order dated 5-12-2014, is a mistake apparent from record which has to be rectified. Shri Narasimhan, therefore, pleaded for rectification of the above mistake apparent from record. 6. Shri Ranjan Khanna, the ld. D.R., vehemently opposed the appellants' plea for recall of the Tribunal's order and pleaded that the Tribunals' order does not suffer from any mistake apparent from record. With regard to the appellant's plea that the provisions of Rule 34(a) of the SWM(PC) Rules have not been considered by the Tribunal, Shri Khanna pointed out to the Tribunal's findings in para 17 of the final order, wherein the Tribunal had considered this plea but has not accepted the same. With regard to the appellants' plea that the clarifications from legal metrology department that the provisions of SWM Act and the Rules made thereunder are applicable in respect of supplies of tiles by the Appellant to builders, building contracts, Hotels, etc., and that MRP is required to be, have not been considered by t....
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....Mistake apparent from record would occur only when a specific plea has been made and has not been considered at all. Under the provisions of Section 35C(2) the Tribunal cannot go into the question of the correctness or otherwise, of the Tribunal's decision on a particular plea made by the Appellant. In the ROM proceedings the Tribunal can consider only these points which as per the records of the case, had been raised and the Tribunal had omitted to consider these points and give its findings on them. 9. The third mistake apparent from record pointed out by the appellant is that in the written submissions they had specifically pointed out to the judgement of Bombay Bench of the Tribunal in the case of H & R Johnson (India) Ltd. v. CCE, Raigad reported in 2014-TIOL-845-CESTAT-Mum = 2014 (306) E.L.T. 645 (Tri.-Mumbai) wherein an identical issue was involved and the Tribunal in that case had held that in respect of supplies of tiles to builders, real estate developers etc. where the tiles had been supplied in retail packs with MRP declared on them and there was no declaration on the packages that the goods are meant for industrial buyers and are not meant for retail sails, the....
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.... scope for any debate and, therefore, the prior order of the Tribunal, which though it could not have taken such decision into consideration, should be examined in the light of the meaning given by the binding decision, warranting rectification on the ground that there was error apparent from the record in not following the law as now declared. We are aware that a very alarming situation can arise because any subsequent binding precedent may trigger enquiries into the various decided cases where orders have been passed without having the benefit of subsequent binding decisions. Precisely to prevent mockery of finality of the decisions and adjudicatory processes, the amendment was made in the Code of Civil Procedure by adding an explanation with effect from 1-2-1977 to Rule 2 of Order XLVII of the Code of Civil Procedure. As per this explanation, it was laid down that, the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Though the provision has been made in the context of review, rectification o....