TaxTMI 
TaxTMI 
2017 (6) TMI 682
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....2, when the following question of law was framed for consideration by this Court: "Whether the order of the learned Tribunal holding penalty imposable on placing reliance on the decision of the Apex Court in the case of M/s.Ind-Swift Laboratories P. Ltd. reported in 2011 (265) E.L.T.3 (S.C.) is sustainable when the Tribunal has passed the impugned order overlooking the fact the Hon'ble Apex Court has not dealt with the issue of imposition of penalty" 3.In order to adjudicate upon the appeal, the following brief facts are required to be noticed: 3.1.The Assessee i.e., Shree Ambika Sugars Limited was in the business, at the relevant time, of manufacturing sugar and molasses. It appears that an audit was conducted by the Rev....
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....e aforementioned order, preferred an appeal with the Commissioner of Customs and Central Excise (Appeals) [in short, Commissioner (Appeals)]. The appeal preferred by the Assessee was dismissed and the order passed by the Adjudicating Authority was confirmed. 5. This led to the Assessee preferring a second appeal, this time, to the Tribunal. The Tribunal, in the first instance, vide order dated 21.02.2011, allowed the appeal of the Assessee. The order of the Tribunal is rather cryptic and was pivoted, essentially on the decision rendered by the Punjab and Haryana High Court in the matter of: CCE Delhi Vs. Maruti Udyog Limited, 2007 (214) ELT 173 (P & H). The Tribunal came to the conclusion that since the Assessee was not liable to pay int....
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....ee, given the facts and circumstances, which have arisen in the present case. 7.3. It is the learned counsel's submission that the Tribunal had to examine in the facts and circumstances of the case, as to whether the excess cenvat credit was taken by the Assessee, on account of mistake or as alleged was an act of deliberate deception. 7.4. Learned counsel submits that the Commissioner (Appeals) has noted that the excess credit was taken by the Assessee, on account of mistake. 7.5. For this purpose, learned counsel relies upon paragraph no.4.1 of the order passed by the Commissioner (Appeals). Therefore, learned counsel's submission, is that, the Tribunal, inter alia, had to examine not only the provisions of Rule 15(2) of t....
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.... application under Section 35 C (2) of the CE Act. For the sake of convenience, the observations made in that behalf, as set out in paragraph 21, are set out hereafter: "21.This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S.Balram v. M/s.Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO ....
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....h (5th) invoice is concerned, i.e., invoice no.827/26921, dated 06.06.2007, the logic and/or, rationale, which has been put forth on behalf of the Assessee to explain the mistake does appear to work. This is because, if, 50% of the credit available to the selling dealer was mistakenly recorded by its Clerk, then, the Assessee should have taken credit for a sum of Rs. 3,541/- (50% of Rs. 7082) and not for a sum of Rs. 35,411/-. 12.2.Be that as it may. These are aspects, which the Tribunal will have to rule on and as indicated above, to come to a definitive conclusion, whether or not, the case falls in the realm of a mistake, as contended by the Assessee or is it a case of deliberate and conscious act of deception and/or wrong doing. 12....