CCE Vs. PATWARI UDYOG LTD. AND BALMUKUND

JUDGEMENT

(1.) This is an application by the Revenue for rectification of mistake in the Final Order No. A/392 -394/2002 -NB(D) dated 8.4.2002.

(2.) When the matter was called, no one was present for the respondents M/s. Patwari Udyog Ltd. and M/s. Balmukund Concast Ltd. We, therefore, heard Ms. Charul Baranwal, learned SDR and perused the records. We agree that there is a mistake in not mentioning of the orders against which the appeals were filed by the appellants. It has been mentioned in the order that the appeals had arisen out of Order -in -Original No. 244 -246/MP/Commr./2001 dated 20.12.2001 passed by the Commissioner of Central Excise, Patna (Bihar). The Tribunal has disposed of three Appeals No. E/654, 655 and 674/2001 -NB vide Final Order dated 8.4.2001. Appeals No. 655/02 and 674/02 had been filed against different Orders -in -Original. We, therefore, direct that the following will be substituted:

(3.) Learned SDR also submitted that the Tribunal had relied upon the decision in the case of Kamper Concast Ltd. v. CCE by remanding the matter to the Commissioner for deciding the appellants' duty liability in terms of provisions of Section 3A(4) and 3A(5) of the Central Excise Act; that as one of the appellants was having two units for manufacturing of ingots and M.S. bars and rods and claiming the benefit of composite plant, provisions of Section 3A(4) would not have applied. It has been held by the Supreme Court in the case of CCE, Calcutta v. A.S.C.U. Ltd, 2003 (90) ECC 438 (SC) : 2003 (54) RLT 607 (SO that a mistake apparent on face of record must be an obvious and patent mistake. "It is held that mistake apparent from the record cannot be something, which would have to be established by a process of reasoning on points on which there may be two opinions. It has been held that a decision on a debatable point of law cannot be a 'mistake apparent from the record'." Thus, there is no mistake apparent on the face of the record on the point that Section 3A(4) could not have been applied. The ROM application on this aspect is rejected.