GORAMAL HARI RAM LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) In this application filed by the assesee, they have claimed that there is an apparent mistake in the Final Order passed by this Bench on 31 -7 -2002 in Appeal No. C/252/2002/NB(SM). The mistake as pointed out by the applicants is that the Tribunal erred in not granting the benefit of Modvat credit by relying upon the decision of the Supreme Court in Union of India v. Solar Pesticides P. Ltd. [2000 (116) E.L.T. 401 (S.C)]. The applicants submit that the Supreme Court in the said case had not dealt with or decided on any question of Modvat credit taken or not taken. Their submission as contained in para (iii) of the application is that they had been consistently pleading for the benefit of Modvat credit of CVD in lieu of refund.

(2.) To briefly recapitulate the facts of the case, the applicants had paid CVD at 18% on 'Palm Kernel Fatty Acid Distillate' imported and cleared under Bill of Entry dated 24 -10 -98. The classification of the goods at the time of such clearance was held under Chapter Heading 38.20 of the Customs Tariff Schedule. Subsequently, the party filed a refund claim of Rs. 2,41,794/ - on the ground that only 8% CVD was liable to paid on the goods which were claimed to be classifiable under Heading 38.23. The proper officer of the department accepted the claim of the party regarding classification of the goods and sanctioned the refund claim. The authority, however, ordered the amount to be credited to the Consumer Welfare Fund on the ground that the claimant had passed on the incidence of duty. In other words, cash refund of the duty was denied to the party on the ground of unjust enrichment. This decision of the original authority was taken in appeal to the Commissioner (Appeals) who affirmed the above decision. Hence the appeal before the Tribunal. This Tribunal dismissed the appeal on its merits, following the decision of the Supreme Court in Solar Pesticides (supra). 2. Heard both sides. Ld. Counsel for the applicants submits that the Tribunal did not at all examine the alternate plea made by the appellants for grant of the benefit of Modvat credit of the CVD under Rule 57A of the Central Excise Rules, 1944. He also submits that the final order passed by this Tribunal is not a speaking order. Ld. Counsel also points out that, after filing the present application, the applicants have filed Misc. application No. 14/2003 under Rule 41 of the CEGAT (Procedure) Rules. In this Misc. application, counsel points out, the prayer is that effective justice be rendered to the assessee by allowing them to avail the benefit of Modvat credit of the excess CVD in lieu of refund thereof. Pressing this Misc. application, ld counsel cites a precedent of this Tribunal exercising inherent jurisdiction under Rule 41. The Tribunal made provision in the final order for set off of certain deposit of the assessee against the amount of duty refundable to them by the department. Counsel submits that the order so passed by the Tribunal under Rule 41 was upheld by the Supreme Court. Copies of the orders of the Tribunal and the Apex Court have been produced by the counsel today. Ld. Counsel prays for following the above precedent and modifying the final order dated 31 -7 -2002 appropriately.

(3.) Ld. SDR opposes this application. She submits that the applicants are making a veiled endeavor to have the appeal redecided on the basis of fresh material. Relying on the Supreme Court's judgment reported in AIR 1971 SC 2204, ld. SDR submits that the present application requires to be rejected in the absence of any mistake apparent from the record.