ORDER
V.K. Ashtana, Member (T)
1. In this application for rectification of mistake, the learned advocate Sri Nazeer Abdullah submits that the Tribunal vide Final Order No. 718/95 dated 20.11.95 had held that when the inputs were removed Under Rule 57F(1)(ii) the duty to be debited should be at the rate as prevalent in the Central Excise Tariff. However, the learned advocate submits that the law as has been laid down and followed is contrary and requires that only that duty credit of which was taken on the duty paying documents on which the invoice was received is to be reversed in these circumstances. He submits that this law was laid down by the decision of the Larger Bench of the Tribunal in the case of CCE v. American Auto Service vide order No. 63/95 dated 23.6.95 as and since the order had not been reported in the ELT when this case was decided by the Tribunal, therefore, the same could not be brought to the notice of the Hon’ble Tribunal. In view of this, the learned advocate submits that there exists a mistake apparent on the face of the record, which needs to be rectified. The learned advocate submits that this Larger Bench judgment has not been upset by any other higher judicial forum but instead has been followed by the various Benches of the Tribunal from time to time and therefore, has acquired the status of the law of the land. He, therefore, prays for recall of the final order, in view of the mistake apparent on the face of the record and re-consideration thereof by allowing the appeal.
2. Learned DR Sri M.Kunhi Kannan submits that there is no mistake in the order impugned and the order is a reasoned order having given the details as to why they came to the said conclusion. He therefore, submits that ROM application should be dismissed.
3. We have, carefully considered the rival submissions and records of the case. We find that the simple issue adjudicated upon in the final order on which the ROM application is now before us concerned, the quantum and rate of duty which is to be reversed when the inputs received under the Modvat scheme were to be cleared out of the factory as such Under Rule 57F(1)(ii). We find that on this issue, the Larger Bench of the Tribunal in the case of American Auto Service (supra) had after a detailed consideration of all the issues, rules that the quantum and rate of duty would be the same as is reflected in the duty paying documents under which the said inputs were received and credit taken. This was exactly the prayer of the appellants before the Tribunal which had been denied by the final order now being questioned. We also find that the said decision of the Larger Bench has since been followed repeatedly by this Tribunal in this matter and has therefore, acquired the status of well defined law of the land. Since the final order goes contrary to the same, therefore, there is an error on the face of the record, which requires to be rectified. We, therefore, recall the final order No. 718/95 dated 20.11.95 and restore the appeal to its original number for re-consideration.
4. Since the issue is already a covered one, on a careful re-consideration of the said Appeal, we find that the ratio of the Larger Bench decision rendered in the case of American Auto Service (supra) would clearly apply to the facts of this appeal. Therefore, applying the ratio of the said decision, we allow the appeal, with consequential relief, if any, as per law.