Misc. Order No. 194/95-C arising from in Appeal No. E/702/93-C. Case: Jay Pee Rewa Cement Co. Ltd. Vs Collector of Central Excise, Raipur. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Misc. Order No. 194/95-C arising from in Appeal No. E/702/93-C |
| Counsel | For Appellant: Shri R. Nambirajan, Advocate and For Respondent: Shri Sanjeev Sachdeva, SDR. |
| Judges | Shri G.P. Agarwal, Member (J) and G.R. Sharma, Member (T) |
| Issue | Central Excise Act, 1944 - Section 35C(2) |
| Citation | 2004 (175) ELT 831 (Tri. - Del.) |
| Judgement Date | December 11, 1995 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
G.P. Agarwal, Member (J), (New Delhi)
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This is an application by the appellants/applicant purporting to be under sub-section (2) of Section 35C of the Central Excises and Salt Act, 1944 to amend the Final Order No. 177/94-C, dated 28-6-1994 [1994 (73) ELT 91 (T)] passed in Appeal No. E/702/93-C filed by the present applicant against the Collector of Central Excise, Raipur with a view to rectify the mistake said to be apparent from the record.
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Appearing on behalf of the appellants Shri R. Nambirajan, ld. Counsel at the outset submitted that, though, the said Final Order was passed by a Bench comprising also Shri P.K. Kapoor, ld. Technical Member, the present application be heard by the present Bench in view of the latest Office Order No. 3/95, dated 6-11-95 since one of us today is on the Bench. Shri Sachdeva, ld. SDR, has no objection in view of the said order of the CEGAT.
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Arguing on the merits the ld. Counsel took us through the said Final Order focusing his attention to Paragraph 2 of the said order wherein it was observed that the learned Counsel submitted that in view of the judgment of the Madhya Pradesh High Court in the case of M/s. S.N. Sunderson (Minerals) Ltd. v. The Superintendent (Preventive), Central Excise, Indore [1995 (75) ELT 273 (M.P.) there was no scope for imposing any penalty since the appellants were under a bona fide belief that their activity of crushing of lime-stone did not amount to manufacture. He submitted that the Tribunal while passing the said Final Order considered the arguments relating to the "meaning of manufacture" and also relating to the extended period of limitation under proviso to Section 11A of the Central Excises and Salt Act, 1944. But it appears that the question of penalty escaped the notice of the Bench while passing the said Final Order. He further submitted that besides the case of Madhya Pradesh High Court the case of Padmini Products v. Collector of Central Excise, 1989 (43) ELT 195 (S.C.) was cited. He contended that this case was remanded by the Hon''ble Supreme Court to the Tribunal on the question of penalty and confiscation. On remand this Tribunal vide its Final Order No. 281/91-C, dated 20-3-91 set aside the penalty and confiscation in that case. For this view the Tribunal relied upon the case of New Polymer Industries v. Collector of Central Excise, 1991 (52) ELT 145. In a nutshell his submission was that since...
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