COMMISSIONER OF CENTRAL EXCISE Vs. HERCULES MECH WORKS

JUDGEMENT

(1.) This application filed by the department (appellant) says that there is an apparent mistake in Order No. A/291 -294/2009/SMB/C -IV dated 15.06.2009 passed by this Bench in Appeals No. E/3468/03 & 3469/03. It is submitted that an amendment brought to Rule 57CC of the Central Excise Rules, 1944 under Section 82 of the Finance Act, 2005 was overlooked by the Tribunal while holding that there was no mechanism under Rule 57CC(2) for recovery of any amount payable thereunder by any person. It is submitted that, as per the amendment, any such amount payable by any person to the Revenue under Rule 57CC(2) is recoverable for the period from 1.3.1997 to 31.3.2000. The period of dispute, in the instant case, is from December 1997 to March 1998, well within the above period covered by the aforesaid amendment (Rule 57CC(2)). In this scenario, the final order passed by this Tribunal in the captioned appeals requires to be modified. Learned JDCR has reiterated this case of the applicant/appellant.

(2.) On the other hand, the learned Counsel for the respondent submits that the appellant never relied on the amended provisions of Rule 57CC(2) and that a new case is sought to be made out at this stage, which, according to learned Counsel, is not liable to be entertained under Section 35C(2) of the Central Excise Act. In this connection, learned Counsel relies on Mohanlal Gupta v. Commissioner of Customs, New Delhi : 2002 (145) ELT 179 (Tri -Del), wherein it was held that any new case could not be made out under Section 129C of the Customs Act by way of an application for rectification of mistake of an order passed by this Tribunal.

(3.) In the result, the final order turns out to be patently erroneous and the same, in the circumstances of this case, requires to be recalled. The impugned order was passed in October 2002, when the crucial amendment to Rule 57CC was not there. The lower appellate authority, at that time, was right in taking the decision against recovery of the amount of 8% of the price of the exempted goods from the assessee for want of machinery provision. The same was the situation when the appeals were filed by the department. However, eventually, the law came to be amended to the advantage of the appellant. In this scenario, I set aside the impugned order and direct the learned Commissioner (Appeals) to take fresh decision on the issue in accordance with law after giving the assessee a reasonable opportunity of being heard.