ORDER
C.R. Sharma
1. M/s. Super Polypack Limited have filed this application stating that a mistake has crept in, in the Tribunal’s Final Order No. 694-97/2000 dt. 22.8.2000 inasmuch as the Tribunal in its final order in the case of Shivalik Agro Poly Products reported in 2000 (40) RLT 465 held that penalty under Rule 173Q of the Central Excise Rules, 1944 is not imposable when modvat credit available in respect of the inputs is higher than the duty payable on the final products.
2. None appeared for the applicants. However, they given written submissions stating the above facts.
3. Shri M.D. Singh, ld. SDR appears for the respondent Commissioner and submits that there is no mistake in the Tribunal’s Final Order inasmuch as the issue was examined by the Tribunal but the facts is the two cases being different, the view was taken.
4. We have heard the ld.DR. We have also perused the written submissions. We find that in para 17 of the Final Order, the Tribunal held that “In regard to limitation, we note that there is a presumption that in case the assessee has sufficient credit balance in the modvat account, there will be no intention to evade payment of duty. In the instant case, we find that for the period 103.95 to 31.12.95 except for August, 1995, the demand has been calculated on the basis of private records maintained shift wise for the period and hence the above presumption will not be applicable to this demand in the present case.”
5. We further note that the case now relied upon by the applicants was not cited before the Tribunal at the time of final hearing. However, the Tribunal had examined the issue and found that the facts were different. In this view of the matter, we do not find any merit in the miscellaneous application. The miscellaneous application is, therefore, rejected.