JUDGMENT
J.H. Joglekar, Member (T)
1. This application attempts to bring out an error in the Tribunal’s Final Order No. D-II/192-93/WZB/2001 dt. 16.1.2001. In this order the Tribunal upheld the order of penalty (but reduced by the appellate authorities, on the ground that although duty on yarn was payable at the spindle stage, the assessees had chosen to defer the point of payment to the point of clearances of resultant fabrics.
2. In the application Public Notice No. 40/96 dt. 23.7.96 issued by CCE Mumbai-I is cited which cites the notes explaining important changes persuant to the introduction of Finance Bill 1996. Citation is made of paragraph 30.6(6) of the said notes which reads as under:-
“The yarn manufactured in a composite mill and cleared as such will be subjected to the applicable rate of excise duty. The credit of duty paid on inputs contained in such yarn is also permissible under the normal modvat procedure. A composite mill while clearing grey fabrics would be required to discharge duty on yarn used in the manufacture of such fabrics. This should be worked out on the basis of existing procedure and internal records maintained by the mill for the actual consumption of yarns in the manufacture of such fabrics”.
3. Shri AV Naik clarified that this point had not been argued or brought up before the Tribunal or before any earlier authority.
4. If this point was not brought before the Tribunal, it cannot form the basis for a rectification of mistake. I further find that the extract deals with extension of modvat facility to textile fabrics. The paragraph seems to give the impression that the provisions of Rule 49(A) were universally extended. The situation however was not so, the said rule is the one, which enables payment of duty on yarn at the stage of clearance of fabrics subject to certain revenue safeguard. I do not see how the provisions of the Rules can be overridden by some Trade Notices issued explaining the budget provisions.
5. Earlier vide some similar instructions the facility of payment of duty twice a month was extended to small sector industries. At the same time however the provisions of Rules 9 and 49 had not been amended. Thus there was for some months a situation where the Board’s instructions ran counter to the provisions of the rules.
6. On these grounds I find no substance in the application and dismissed the same.
(Pronounced in Court)