Judgment:
1. M/s. Rajasthan Transformers have filed this ROM stating that the following mistakes have crept in 1.(a) In para 5 of the Tribunal's final order No.A/1799/96-NB dt.
10.7.96 there is no mention about the fact that the modvat credit on the inputs taken on 23.11.92 had been reversed by the applicant on 23.1.93 and subsequently the applicants had filed a claim for modvat credit under Rule 57H (1A) before the Asstt. Commissioner on 4.2.93 on which date there was no subsisting modvat credit. This important aspect has, perhaps, escaped the notice of the Hon'ble Tribunal a) It is submitted that Sub Rule (1A) was inserted under Rule 57H by notification No.28/91-CE (NT) dt.25.7.91 (effective from 1.9.91) which provided that the Asstt. Collector of Central Excise may allow credit of the duty paid on inputs received by a manufacturer immediately before obtaining the dated acknowledgment of the declaration made under the said rule if he is satisfied that a) Such inputs are lying in stock or are received in the factory after filing declaration under Rule 57G or, b) Such inputs are used in the manufacture of final products which are cleared from the factory after filing the declaration made under Rule 57G. This was, however, subject to the condition that no credit has been taken by the manufacturer in respect of such inputs under any other rule or notification.
c) That no credit should have ben taken on the said inputs under any other rule or notification.
d) That the Asstt. Commissioner should be satisfied about the claim and finally e) The Asstt. Commissioner should allow the assessee to take the credit. All these requirements were fulfilled in as much as the applicant had filed the claim under Rule 57H on 4.2.93 (Exhibit 3 of appeal refers); the inputs were physically present on 30.12.92 as it evident from para 4 of "Discussion & findings" of the Order-in-Original dt.26.5.93 where there is reference of RG 34A Pt.I and the verification report of the Range Officer (Exhibit 4 of appeal refers), the applicant had not taken the modvat credit on the said inputs the credit taken on 23.11.92 was reversed on 23.1.93 (this fact is confirmed by para 3 of the "brief facts of the case in Order-in-Original dt.26.5.93 (Exhibit 4 of appeal), that being satisfied about the correctness of the claim, the Asstt. Collector passed Order-in-Original No.65/93 dt. 26-27.5.93 and allowed the applicant to take credit of Rs.72169/- in the books. It was only after the receipt of the order that the applicant took credit of Rs.72169/- in the books on 14.6.93. This factual position has also been brought out in para 2 and 3 of the Hon'ble Tribunal's Final Order No.A/1799/96-NB dt.10.7.96. These facts also dis-approve the contention of the Collector, Central Excise, Jaipur in "Grounds of Appeal" in the appeal filed by the department (Exhibit 6 of appeal) that the taking of modvat credit on 23.11.92 (when it was not a declared input) was wrong and illegal and the subsequent declaration on 30.12.92 and claim under Rule 57H could not be taken to regularise the irregularity availed credit which was also endorsed by the Collector (Appeals), New Delhi in Order-in-Appeal No.195/CE/(JPR)/94 dt.30.12.94 (placed at page 11-12 of appeal).
From the facts stated above it would be evident that the said ground of appeals and its endorsement by the Collector (Appeals) New Delhi was against the provisions of the Rules. As already stated above, the applicant had claimed the credit under Rule 57H by applying to the Asstt. Collector on 4.2.93 on which date on credit existed on the said inputs. Thus, the position obtaining on the date of filing claim under Rule 57A is relevant and the contention of the department that the applicant had taken the credit on 23.11.92 before submitting the declaration on 30.12.92 is of no avail. This important aspect of non-existence of credit on the date of filing claim under Rule 57H is conspicuous by its absence in the appeal filed by the Department and also in the Collector (Appeals) Order.
Unfortunately, this aspect was also lost sight of by the Tribunal in para 5 of the Final Order No.A/1799.96-NB dt.10.7.96. The codal requirements of Rule 57G(1A), as brought out in para 10 of ground of this application, were completely fulfilled and being satisfied, the Asstt. Collector had allowed the credit which has, therefore, justified".
2. None appeared for the appellant. However, there is a request of considering their case on merits.
3. Shri Ashok Kumar, Ld. DR appears for the respondent Commissioner and submits that the request for rectification of mistake is nothing but a request for re-hearing of the case. He submits that Larger Bench of this Tribunal has held that only mistake apparent from the record may be rectified. He submits that there is no mistake and therefore, the application may be rejected.
4. I have heard Ld. DR. I have also perused the statement of mistake submitted by the applicant. I note that Section 35C(2) is clear in-as-much as the question of rectification of mistake is concerned, The mistake should be apparent on the face of the record. In the instant case it would be seen that it is an application for re-hearing of the case. The statute does not provide for review of the case. There is no mistake apparent from the record and therefore, the application is rejected.