Misc. Order No. 272/2012-SM(BR)(PB) arising from in EROM No. 25/2012-SM(BR) in Appeal No. E/1354/2009-SM(BR). Case: Ester Industries Ltd. Vs Commissioner of Central Excise, Meerut-II. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)

Case NumberMisc. Order No. 272/2012-SM(BR)(PB) arising from in EROM No. 25/2012-SM(BR) in Appeal No. E/1354/2009-SM(BR)
CounselFor Appellant: Shri R. Santhanam, Advocate and For Respondents: Shri R.K. Mathur, AR.
JudgesShri Mathew John, Member (T)
IssueCentral Excise Act, 1944 - Section 35C(2)
Judgement DateOctober 26, 2012
CourtCEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)

Order:

(Principal Bench At New Delhi)

  1. The applicants have filed this application requesting for rectifying of mistake perceived by them in Final Order No. 836/2011-SM(BR), dated 11-11-2011 passed by the Tribunal [2012 (26) S.T.R. 550 (Tri. - Del.)].

  2. The above Final Order disposed of Appeal No. E/1354/2009-SM in the matter of Cenvat credit taken by the applicants for service tax paid on insurance premiums paid for insuring their plant and machinery during the year 2004-05. The dispute was in relation to credits taken against invoices dated prior to 10-9-2004. As per Rule 9(1)(f) of Cenvat Credit Rules, 2004, credit for service tax paid in input services was allowed only against invoices raised on or after 10-9-2004. Since the applicants had taken credit based on invoices dated earlier to 10-9-2004, Revenue initiated proceeding for recovery of such credit taken and utilized by issue of Show Cause Notice dated 22-5-2006. The demand raised in the notice was confirmed along with interest and penalty. The applicant was contesting before the Tribunal that the demand was not maintainable on merits as well as that the demand was mostly time-barred since the Show Cause Notice for recovering credit taken during Dec. 2004 to Dec. 2005 was issued only on 22-5-2006

  3. After considering arguments of the appellant, that is the present applicant and Revenue in the matter the Tribunal held that the demand was maintainable on merits and rejected the argument that there was no suppression involved in the matter.

  4. Now moving for rectification of error in the order the Counsel for the applicant submits that the same issue was decided by a Division Bench of the Tribunal vide Final Order No. ST/603/2011(PB), dated 23-11-2011 [reported as 2012 (277) ELT 92 (Tri.-Del.) = 2012 (25) S.T.R. 385 (Tri. - Del.)] holding that credit on the basis of invoices issued prior to 10-9-2004 is also available under Cenvat Credit Rules, 2004. He submits that this decision was given later to the order dated 11-11-2011 for which rectification is now being sought. So he states that technically the Single Member Bench which gave the decision on 11-11-2011 cannot be held to be in error for not having taken judicial notice of the said decision.

  5. The main thrust of the argument of the Counsel for applicant is that this is a matter in which two benches have taken two different views and hence no suppression with intent to evade tax could be attributed to the applicant and hence...

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