Judgment:
The Final Order No.A/194/99-NB (SM) dt 12.3.99 is the subject matter of the present ROM petition. The operative dpart of this order is extracted below: "7. I have considered the submissions. I agree with the submissions of Ld. JDR that the issue involved in this case is not about giving retrospective effect to the notification No. 11/95 dated 16.3.95 but availability of modvat credit lying unutilised with the appellants after they had ceased to operate under modvat scheme. I find that the Commissioner (Appeals) has correctly relied on Rule 57 C which clearly lays down that where final products do not suffer duty, modvat credit cannot be availed on the inputs used in those final products.
8. In the light of the above discussion, I find no infirmity in the impugned order and I uphold the same. The appeal is, as a result, rejected." 2. Shri Surinder Mishra, Advocate assisted by Shri Anurag Mishra, Advocate appearing for the appellants stated that actually the above extracted findings in the impugned order were not the subject matter of consideration before the Bench in this case. Ld. Advocate submitted that the issue in the appeal relates to the demand on the clearances made subsequent to 1.4.94 at nil rate of duty under Notification No.1/93 in respect of the product lying in stock as on 1.4.94 and the clearance of the products manufactured on or after 1.4.94. He stated that the show cause notice issued in this matter was not for reversal of credit on the raw material used in the finished products lying in stock on 1.4.94. It is further contended that the observations to the effect that the issue involved is not about giving retrospective effect to Notification No. 11/95 dated 16.3.95 but the modvat credit lying unutilised when they ceased to operate under the Modvat Scheme is also not correct. It is further stated that in the first as well as in the second appeal, it was emphasised that before 16.3.95 when Notification NO. 11/95 was issued, there was no statutory provisions to the effect that full exemption from duty based on the value or quantity of clearances will not be allowed unless amount equal to credit taken on inputs lying in stock as such or contained in finished goods lying in stock after deducting the credit lying in balance is paid. It is stated that this Notification will not apply retrospectively to 1.4.94 when option for full exemption was exercised. In this case date of option is 1.4.94. It is stated that the duty demandable is only on the inputs used in finished goods lying in stock on 31.3.94 and the finished goods manufactured from unutilised inputs cleared at nil rate duty.In view of this fact, it is contended that there is apparent mistake in the above findings in the order of the Tribunal and the same would call for rectification by recalling the order in question and passing afresh order.
The Ld. Advocates for the appellants relied on following decisions in support of their contention:-U.P. State Textile Corpn. vs. CCE 4. I have considered the submissions made before me. The relevant extracts from the order of the Tribunal, subject matter of present ROM, are already appended above. In this it is held that the Commissioner (A) had correctly relied on Rule 57C which clearly lays down that when final products do not suffer duty, modvat credit cannot be availed on inputs used in these final products. The appellants are disputing that Commissioner (Appeals) had arrived at these findings which are upheld by the Tribunal in its order. In fact appellants in this petition are seeking review of the order which is not permissible. The Larger Bench of the Tribunal in the case of Dinker Khinderia, Vs CCE New Delhi 2000 (118) ELT 77 (Tribunal-LB) has held that rectification of mistake is by no means an appeal in disguise whereby an order, even if it is not valid, is reheard and redecided. Rectification of mistake application lies only for patent mistake - only in the cases where the mistake stares one in the face and there could reasonably be no two opinions entertained about it, a case for rectification of mistake can be made out. It is further observed that the Tribunal under no circumstances can recall an order validly passed.
5. In the present proceedings the petitioners by way of ROM are in fact are asking for the recall of the order and passing a fresh order which has specifically been held to be not permissible in a ROM petition in the cited decision of the larger bench of CEGAT.