TaxTMI 
TaxTMI 
2016 (9) TMI 141
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....ssue on being aggrieved by any submission or finding recorded in the Final Order, nor is it seeking review of the said Final Order. The limited contention of the applicant as recorded in this rectification of mistake application is as follows- "3. However, consideration of the following submissions specifically argued and also contained in the Written Submissions dated 17.07.2014 filed on behalf of the Appellant in support of their case, do not reflect in the said Final Order. "F. The Appellants have shown the invoice and lorry receipt for Tower [classified under CETH 73082011 with evidence of payment of central excise duty] and telecom shelter /pre-fabricated structure/building [classified under CETH 94060099 with evidence of payment of central excise duty]. The Appellants rely upon the following Judgments to show that the excisable and duty paid goods, purchased by the Appellants, transported by road to Appellants premises cannot be held as non-excisable, so as to deny Cenvat credit of duty paid on the same, without there being revision of assessment and refund of the duty paid at the end of supplier. 1. CCE VS MDS Switchgear LTD, 2008 (229) ELT ....
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.... through the findings recorded in the judgments relied upon in the Compilation-II, and also through the relevant findings in this regard recorded in the Order-in-Original. 4. The departmental representative opposed the application and while relying upon the judgment in Rashtriya Chemicals & Fertilizers Ltd. Vs Union of India (2013 (293) ELT 667 (Bom), hesubmitted that an ROM is for correcting a mistake apparent on the record. No review is permitted in the guise of an ROM. He invited reference to the first written submissions dated 11.07.2014 tendered by the applicant. He submitted that since this issue was neither contained in the appeal nor raised before the adjudicating authority, there was no error in not giving any finding on the issue. He submitted that only an error which is readily evident needs correction and it was not the case here. He submitted that a Departmental appeal is now pending against the Final Order before the Hon'ble Bombay High Court, and the law point can be taken before the Hon'ble High Court, if required, through a suitable application. He also relied upon the following judgments to oppose the application for ROM - - Om Praksh Bhatiya V/s....
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....n para 40 to 47 of State of Andhra Pradesh Vs Bharat Sanchar Nigam Ltd - 2012 (25) STR 321 (AP). He also relied upon Mundra Port and Special Economic Zone Ltd Vs CCE - 2009 (13) STR 178 (Tri Ahd) and Gujarat State Petronet Ltd Vs CCE - 2013 (32) STR 510 (Tri Ahd). He tried to justify that the Final Order passed by the Tribunal was erroneous. He further submitted that the case laws cited in the Compilation II are on the point that credit cannot be reduced to the recipient of goods with reassessment of the duty paid by the supplier and granting refund to the supplier. But in the present case, the department is denying credit due to no nexus between the goods and the output service. The case laws cited are irrelevant.He further submitted that the ground being taken by the applicant does not help in distinguishing the judgment in Bharti Airtel Ltd. -2013 (29) STR 401. Hence, prayed for denying credit to the applicant on merits. 5. We have carefully gone through the records before us and the submissions advanced by both sides. 6. It is seen that the written submissions tendered on 11.07.2014 show amongst the issues to be determined, the following specific issue raised ....
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....was remanded. A judgment of the Hon'ble Karnataka High Court in Commissioner of Sales Tax vs. Yokogawa Blue Star Ltd., 2010 (19) STR 482 (Kar.) was also relied upon wherein it was held that the Tribunal committed an error in not considering the ground urged by the Appellant before it. None of the other judgments relied upon by the Ld. DR on the issue of maintainability of the ROM Application are applicable in the above peculiar facts of the instant case. In the instant case the written submissions available on record and filed before the Final Order, clearly show beyond any doubt that the above legal issue though raised and argued on behalf of the Appellant, was not considered and no findings were recorded thereon. Such error apparent from record needs to be rectified. 6.2 Although the Ld. DR suggests that this issue, on which findings have not been recorded in the Final Order, can also be raised by the appellant before the Hon'ble High Court, however, we deem it just and expedient to allow the application for rectification of mistake and to record our findings on the issue after having heard both sides on the application for rectification as well as the merits of the issu....
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.... be considered as excisable goods and no excise duty be charged / recovered." 6.5 We agree with the submission of the Learned Senior Counsel for the Appellant that once at the end of the 'Supplier' the Towers / BTS Cabins are assessed to Central Excise Duty by considering them as 'excisable goods' and the assessed Central Excise Duty has been collected, it is not open for the Central Excise authority at the end of the 'recipient' to question whether the goods are dutiable and excisable, for the purpose of denying cenvat credit of such duty collected by the department.Any subsequent determination of the issue as to whether or not such duty paid goods were 'excisable' or 'dutiable' can only be decided at the end of the 'Supplier' unit where the initial assessment had taken place and the Central Excise Duty was levied, assessed and collected. No loss is caused to the Revenue. 6.6 In arriving at this satisfaction, we are persuaded by the findings recorded in the judgments contained in the Compilation-II submitted by the Appellant. In Commissioner of Central Excise & Customs v. MDS Switchgear LTD., 2008 (229) E.L.T. 485 (S.C.), the Hon'ble Supreme Court was pleased to ....
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....dit was rightly taken." 6.8 In CCE v. U.P. State Sugar Corporation Ltd - 2013 (291) ELT 402 the Tribunal observed as under- "4. The Cenvat credit, in question, had been taken by the respondent on the basis of an invoice issued by M/s. Jyoti Ltd. for repair of the rotor assembly. It is well settled that repair activity does not amount of manufacture and, as such, no duty should have been charged from M/s. Jyoti Ltd. on the repair of rotor assembly. But still when the department has collected duty from M/s. Jyoti Ltd. on the repair of rotor assembly and the payment of duty is evidenced by the invoice issued by M/s. Jyoti Ltd., its Cenvat credit cannot be denied to the respondent. The only way to deny the Cenvat credit in this case would be to revise the assessment at the end of M/s. Jyoti Ltd., refund the duty paid by them and only in that case the Cenvat credit could have been denied to the respondent, but this has not been done. Without revising the assessment at the end of manufacture of some inputs, the Cenvat credit cannot be denied at the end of the receiver of those inputs. This is the view which has been taken by the Apex Court in the case of CCE & C v. MDS ....
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....n is whether; if, excise duty is levied on an assessee at place "A" and Modvat credit is sought to be availed of at place "B", it is open to the Authorities at place "B" to deny credit on the ground that no duty was payable at place "A". 3. We have accordingly re-framed question no. 4 at the time of admission of the appeals as above in all these cases. The common facts are that job works were undertaken at one place outside Goa and excise duty was paid on the goods before removing them from that place. These goods were brought to Goa and the factory owners sought to avail Modvat credit on the basis that the duty was already paid in the place outside Goa for the job work. This credit was sought to be denied by the Revenue on the ground that the job work did not attract payment of duty at all, and, therefore, the payment of duty outside Goa was of no consequence. Therefore, as a result the assessee cannot claim any credit in Goa. 4. Eventually, the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), took a view that the point is covered by a decision of the CEGAT judgment in the case of Owens Bilt Ltd. v. Commissioner of Central Excise, Pune reported in 199....