JUDGMENT
P.G. Chacko, Member (J)
1. This is an application filed by the appellants claiming that there is an apparent mistake in Final Order No. 816/2002 dated 8.8.2002 passed by this Tribunal in Appeal No. E/ 1205/01-NB. It is pointed out that, in the Final Order ibid, the Tribunal has proceeded erroneously on the basis that the appellants had admitted liability to pay the differential amount of duty. If at all the differential amount paid by the appellants was to be considered as an amount of duty, then it was also to be considered by the Tribunal as to whether the appellants were liable to pay any such duty. The Tribunal did not examine this question though the appellants had clearly contended that, if the differential
amount deposited by them to be considered not to be a duty the same could be recovered only under Section 11D and not under Section 11-A of the Central Excise Act, in which event the provisions of Section 11-AB and Section 11-AC would not be applicable. These provisions could be applied only where the differential amount paid by the appellants could be held to be an amount of duty demanded under the proviso to Section 11A(1) of Act. Where the differential amount was paid pursuant to a demand under Section 11-D, the provisions of Section 11-AC, 11-AB were not applicable and, consequently, no penalty under Section 11-AC could be imposed and no interest under Section 11-AB could be charged. Therefore, the question whether the amount was paid under Section 11-AD or under Section 11-A of the Act was material in this case. It is not correct to say that the appellants had not disputed the duty liability. It is therefore prayed that the mistake in paragraph 2 of the Final Order be rectified.
2. The learned Counsel for the applicants reiterated the above averments. He submitted that it was the depot of the Indian Oil Corporation which had filed the appeal. The depot was not the manufacturer of the goods. It was only a registered dealer of the goods manufactured by the Indian Oil Corporation’s Refinery. No demand of duty could be raised against the depot under Section 11-A as it was not the manufacturer of the goods. Counsel relied on the decision of the Tribunal in Bharat Petroleum Corporation Ltd v. CCE Meerut, 2002 (53) RLT 670.
3. The learned DR did not agree that there was apparent mistake in the Final Order. He relied on the Supreme Court’s decision in CCE v. ASCU Ltd. 2003 (151) ELT 481 (SC) and submitted that something which had to be established by a long drawn process of reasoning could not be recognized as a mistake apparent on the face of the record and the same would be the position where in the case of two opinions were possible on a debatable point. In the instant application, he pointed out, the applicants challenged the Final Order on a debatable point. The question was whether the differential amount paid by the party was an amount of duty under Section 11-A or a mere amount (not being duty) under Section 11-D. It was not open to the applicants to reagitate this issue in this application.
4. We have examined the submissions. The Commissioner of Central Excise had confirmed a demand of Rs. 7,19,420.74 against M/s Indian Oil Corporation Ltd. (as dealer) under Section 11-D read with Section 11-A for the period 1.8.98 to 1.7.2000. Towards the demand so confirmed, the Commissioner appropriated an amount of Rs. 7,04,374 deposited by the Corporation’s Mathura Refinery and an amount deposited by its depot (as dealer). The Commissioner also imposed a penalty of Rs. 7,19,420.74 on the Corporation under Section 11-AC of Central Excise Act. He also ordered levy of interest on the amount of Rs. 7,19,429.74 (demanded under Section 11-D read with Section 11-A) under Section 11-AB of the Act. A penalty Rs. 1 lakh was also imposed under Rules 173-Q and 210 of the Central Excise Rules, 1944. The captioned appeal was filed against this order of Commissioner. In the Final Order passed by the Tribunal, it was noted that the amount of differential duty of Rs. 7,19,420.74 liable to be paid by the appellants was not in dispute. The party, in the present application, has
complained that the alleged liability to pay Rs. 7,19,420.74 as duty of excise had, in fact, been contested in the appeal. It is their case that only when the amount was to be considered as duty paid under the proviso to Section 11-A (1) of the Central Excise Act, then only the provisions of Sections 11-AC and 11-AB would be applicable. If, on the other hand, the amount was to be considered as one deposited under Section 11-D, the provisions of Section 11-AB and Section 11-AC would not be applicable.
We find that in the Final Order there is a clear finding, which reads as under:
“It is pertinent to notice that the show cause notice dated 27.9.2000 was issued to the appellants for demanding the duty not only under Section 11-D but also under the provisions of Section 11-A of Central Excise Act by invoking the extended period of five years as the appellants allegedly defrauded the Government revenue to evade payment of duty and rendered themselves liable for penal action under Section. 11-AC, Rules 173-Q and Rule 210 of the Central Excise Rules, 1944”.
We also note that, in the appeal, the appellants had accepted the payment of Rs. 7,19,420.74 as a payment of differential duty. This is evident from the various grounds of appeal. There is no case for the applicants that there is any error in the above finding of the Tribunal. It appears from the grounds of appeal that the applicants had accepted the differential amount as representing duty of excise. The finding of this Tribunal that the show cause notice issued to the appellants had not only raised a demand under Section 11-D but also demanded duty under Section 11-A of the Central Excise Act by invoking the extended period of limitation on the ground of fraud remains intact with no error attributed thereto by the applicants. It appears to us that, in this application, the party seeks to debate a point which stands concluded by the Tribunal in the Final Order, for which the appropriate remedy is not under Section 35-C of the Act. As rightly pointed out by the learned DR, the Hon’ble Supreme Court has considered the scope of such applications in the case of ASCU Ltd. The Court has held that ah apparent mistake should be an obvious and patent mistake and not something which has to be established by a long-drawn process of reasoning. In the instant matter, the applicants have not been able to show any such patent mistake to be rectified under Section 35-C. They have only attempted to re-agitate the question whether the amount of Rs. 7,19,421 deposited by the Indian Oil Corporation was an amount of duty or not, which is not permissible. We reject this application.
