Full Judgment
2. Shri O.P. Agarwal, learned Advocate, submitted that the Tribunal, vide Final Order dated 16.7.2003, has allowed the appeal filed by the Revenue; that the Revenue had challenged the Order-in-Appeal passed by the Commissioner (Appeals) only against allowing the Modvat Credit on storage tanks, structure of monorail and platform; that, however, the Appellate Tribunal has allowed the appeal by setting aside the Order-in-Appeal passed by the Commissioner (Appeals); that the impugned Order-in-Appeal should have been set aside only to the extent of allowing of Modvat Credit on storage tanks, structure of monorail and platform instead of setting aside entire impugned order. He, further, submitted that secondly the show cause notice was issued for disallowing the Modvat Credit on capital goods to the extent of 50% of the duty only and the remaining 50 per cent was availed of by the applicants after issue of notice and as such the second 50 per cent was not covered by the show cause notice and, therefore, disallowance of the 100 per cent Modvat Credit cannot be confirmed by the Appellate Tribunal and accordingly to this extent the order requires to be rectified.
3. Opposing the prayer, Shri Kumar Santosh, learned DR, submitted that the Appellate Tribunal, under the Final Order in question, has only decided the availability of Modvat Credit in respect of storage tank, structure of monorail and platform; that the appeal has been allowed by the Tribunal only in respect of these two aspects and it cannot be said that the Tribunal has set aside the entire order. He, further, submitted that the Tribunal has duly considered the submissions made by the applicants that only 50 per cent of the Modvat Credit, availed of on capital goods, could be disallowed; that, however, the Tribunal did not agree with their submissions and accordingly under ROM application, the finding of the Tribunal cannot be challenged.
4. We have considered the submissions of both the sides. The learned SDR has correctly pointed out that the Tribunal has only dealt with the issue of availability of Modvat Credit in respect of storage tanks, structure of monorail and platform. The Tribunal has allowed only the appeal filed by the Revenue and to that extent, the impugned order has been set aside. As such there is no mistake apparent on the face of the record. We also find no force in the submissions of the applicants that by disallowing 100 per cent Modvat Credit on the capital goods, the error has been committed by the Tribunal. It is a settled law that a decision on debatable point of law or fact is not mistake apparent from the records and the debatable issue could not be a subject of order of rectification. It has been held by the Larger Bench of the Tribunal in the case of Dinkar Khindria v. CC, 2000 (38) RLT 442 (CEGAT) that "mistake apparent on the record must be an obvious and patent and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions". Accordingly, there is no mistake apparent on the face of records in disallowing the Modvat Credit to the extent of 100 per cent Modvat Credit on the capital goods. Accordingly, the application, filed by the applicants, is rejected.