2004 (97) ECC 561 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri Jeet Ram Kait, Member (T)

Tamil Nadu Cement Corporation

Versus

CCE, Trichy

E/ROM/14/04 in Appeal No. E/373/2004

Misc. Order No. 548/2004, dt. 10.9.2004, Certified on 21.9.2004

Rectification of Mistake

Application for rectification of mistake is in the guise of seeking a review of the order passed on merits on appreciation of facts and evidence on record -- Held, for rectifying mistake in the disposal of appeal, application in the nature of review application was not permissible.

[Para 5]

Rectification of Mistake

Mistake apparent on the face of record must be an obvious and patent mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible and that decision on debatable point of law also cannot be treated as "mistake apparent from the record -- No mistake apparent on record arising from the final order passed by Tribunal, calling for rectification of mistake -- Therefore, application rejected.

[Para 5]

PRESENT :

Shri Namasivayam, Cons. for the appellant.

Shri B.L. Meena, SDR for the respondent

Cases Cited :

1. CCE v. Jawahar Mills Ltd., 2001 (77) ECC 3 (SC)...................................... [Paras 1 & 4]

2. CCE, Calcutta v. ASCU Ltd., 2003 (90) ECC 438 (SC)...................................... [Para 5]

3. Dental Products of India v. Collector 1991 (53) ELT 118 (Relied on) .................. [Para 5]

4. Dinkar Khindria Dinesh Khindria, 2002 (83) ECC 875 (LB)................................. [Para 5]

5. Jay Pee Rewa case 2001 (77) ECC 457 (SC)................................................... [Para 1]

6. Madras Cements Ltd. v. CCE, Hyderabad, 2003 (88) ECC 491 (LB).................... [Para 1]

7. Om Prakash Bhatia v. CC, New Delhi, 2001 (73) ECC 724 (T-LB)...................... [Para 5]

8. Priya Corporation v. Collector, 1993 (68) ELT 90............................................... [Para 5]

9. UP State Electricity Board v. Commissioner, 2002 (147) ELT 1133.................... [Para 5]

10. Vikas industrial Gas, 2000 (38) RLT 415........................................................ [Para 1]

Per : Shri Jeet Ram Kait (Oral)

This miscellaneous petition is filed in terms of Section 35C(2) of the Central Excise Act, 1944, seeking rectification of mistake said to be apparent on the face of record in the order of the Tribunal bearing Final Order No. 701/2003 dated 4.9.2003. In the ROM application, it is stated as under:

(1) Both the Commissioner (Appeals) and Single Member (T) have erred in holding that hole drilling machine, wagon drill and accessories were used in mines and not in the factory.

(2) During the arguments on 4.9.2003, the Consultant argued that mining is different from quarrying and the facts are not similar to the facts of the case in Madras Cements Ltd. v. CCE, Hyderabad, 2003 (88) ECC 491 (LB) : 2003 (56) RLT 978 (T) (L.B.). This was not recorded in the final order 701/2003 dated 4.9.2003. Principle of "Sub-Silentio" exists.

(3) According to Chambers Science and Technology Dictionary word "Mines" is : "Mine (Min-Ext) Subtermanean Excavation made in connection with exploitation of or search for minerals of economic interest. Terms quarry, pit and open cast are reserved for workings open to Day Light". Our case relates to quarrying and not mining.

(4) The learned Member had no comments on the plea of extended meaning of the word "factory" as per Sec. 2(e) of the Act as in para 2.1 of the grounds of appeal. The concept of "Factory" as per Sec. 2(e) of Central Excise Act read with Sec. 2(m) of the Factory Act cannot differ for application of Rule 57A /57F/ 57J, as against 57Q in respect of capital goods. For example, explosives used outside at a far off place from the factory were held to be eligible for Modvat credit by giving a liberal view but a narrow view is given in the capital goods credit. This is against page (7) para (4) of the decision in the case of CCE v. Jawahar Mills case - 2001 (77) ECC 3 SC : 2001 (132) ELT 3 (SC) which specifically dealt with admissibility of credit under Rule 57Q.

(5) Reliance placed on the case of Madras Cements Ltd. v. CCE, vide para 4 of Final Order No. 701/2003 dated 4.9.2003 is misplaced.

(6) Vikas industrial Gas, 2000 (38) RLT 415, dealt motor pump used for pumping water and not quarrying lime stone without which the final productivity cement could not be made.

(7) If the ratio of decision in the case of (6) above is applied in the case of J.K. Udaipur Udyog Ltd., case the facts of the case must be the same and not for quarrying limestone and therefore as per para 22 of the decision in the Jay Pee Rewa case 2001 (77) ECC 457 (SC) : 2001 (133) ELT 3 (SC) the said appeal was dismissed.

(8) Reliance placed on the decision in Jay Pee Rewa, 2001 (77) ECC 457 (SC) : 2001 (133) ELT 3 (SC) is not appropriate for the reasons mentioned in para 6 & 7 supra.

(9) We bring to notice, that Madras CEGAT had in the case of Panyam Cements & Minerals Industries v. CCE made reference Order No. 56/99 dated 20.8.99 in E/855/96 to the High Court of Andhra Pradesh as to whether hydraulic excavator for quarrying lime stone away from the factory is entitled for capital goods credit. This reference is pending.

(10) The decision in the case of Jay Pee Rewa case (SC) AND Madras Cements by the Tribunal, 2003 (88) ECC 491 (LB) : 2003 (56) RLT 978 (LB) dealt only with input credit as per 57A, 57F/57J only. As far as capital goods are concerned, final order of the Supreme Court in only CCE v. Jawahar Mills Ltd., 2001 (77) ECC 3 SC : 2001 (132) ELT 3 (SC).

2. Shri V.P. Namasiayam, learned Consultant for the appellant, reiterated the above grounds and prayed for allowing the ROM application.

3. I have also heard the learned JDR.

4. I have considered the submissions. I observe that the ground taken in the miscellaneous application as well as the arguments of the Consultant Shri Namasivayam, centers round on the merits of the case and not on any mistake apparent on the face of the record. It was pointed out to the Consultant that in view of the fact that decision on merit has been given in this appeal in appreciation of the facts and evidence and the plea made at the time of arguments, the only remedy for him was to go in appeal and no application for rectification of mistake lies when the issue has been decided on merits, as no mistake can be said to arise on a decision arrived in appreciation of evidence. The Consultant was not satisfied and submitted that the decision in the case of Jay Pee Rewa case (SC) and in the case of Madras Cements, reported in 2003 (88) ECC 491 (LB) : 2003 (56) RLT 978 (LB), the issue related to only input credit and there was no occasion to consider the provisions of Rule 57Q of the Central Excise Rules which are relevant for availing the benefit of the modvat credit in respect of the capital goods and so far as capital goods are concerned, it is only the judgment of the Hon'ble Apex Court in the case of CCE v. Jawahar Mills, 2001 (77) ECC 3 SC : 2001 (132) ELT 3(SC) which is applicable. He, therefore, submitted that reliance on the judgment in the case of both Madras Cements Ltd. and Jay Pee Rewa case is misplaced. He, therefore, sought rectification of mistake.

5. As noted above, the present application for rectification of mistake is in the guise of seeking a review of the order passed on merits in appreciation of the facts and evidence on record. I note that the Tribunal in the case of Dental Products of India Ltd. v. Collector, 1991 (53) ELT 118 has held that for rectifying mistake in the disposal of appeal, application in the nature of review application was not permissible. It was further held therein that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. Appeal filed by the party against the said decision was dismissed by the Hon'ble Apex Court as reported in 1997 (95) ELT Page A-226. Similar view was taken by the Tribunal in the case of Priya Corporation v. Collector, 1993 (68) ELT 90. SLP filed by the party against the said decision was dismissed by the Hon'ble Apex Court as reported in 1997 (94) ELT page A-249/250. Further, Larger Bench of the Tribunal in the case of Dinkar Khindria Dinesh Khindria, 2002 (83) ECC 875 (LB) : 2000 (38) RLT 442 has held that a decision on debatable point of law or fact is not a mistake apparent on records and that ROM lies only against patent mistake. Further, the Larger Bench of five Members in the case of Om Prakash Bhatia v. CC, New Delhi, 2001 (73) ECC 724 (CEGAT-LB) : 2001 (45) RLT 119 (CEGAT-LB) has held that mistake apparent from record is not to be spelt out on the ground that all the grounds. mentioned in appeal memo were not dealt with. Further, the Tribunal in the case of UP State Electricity Board v. Commissioner, 2002 (147) ELT 1133 has held that review of an order already passed is not possible under an ROM application. The appeal filed by the party against the said order has been dismissed by the Hon'ble Apex Court as reported in 2003 (151) ELT A-181/182. Further the Hon'ble Supreme Court in the case of CCE, Calcutta v. ASCU Ltd., 2003 (90) ECC 438 (SC) : 2003 (151) ELT 481 (SC) has held that mistake apparent on the face of the record must be an obvious and patent mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible and that decision on debatable point of law also cannot be treated as "mistake apparent from the record". In view of the various pronouncements by the Tribunal as well as by the Hon'ble Apex Court, I do not find any mistake apparent on record arising from the final order passed by the Tribunal, calling for rectification of mistake. Accordingly, the ROM application is rejected.

6. Operative portion of the order was pronounced in open Court on 10.9.2004.

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