Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Central Excise, Bombay vs Oswal Petrochemicals Ltd. on 7 March, 2002
Equivalent citations: 2002(144)ELT217(TRI-DEL)
ORDER S.S. Kang, Member (J)
1. The Revenue filed this application for rectification of mistake in the Final Order No. 216/2000-C, dated 20-4-2000.
2. Heard both sides.
3. Against the final order dated 20-4-2000 passed by the Tribunal, the Revenue filed Civil Appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court, vide order dated 26-9-2000 dismissed the appeal as withdrawn on the ground that the Revenue wants to approach the Tribunal by filing a Review Petition. Now, the Revenue filed this misc. application for rectification of mistake.
4. The contention of the Revenue is that the Tribunal vide final order dated 20-4-2000 in Para 8 held that the contents of File No. 6 recovered from the premises were never put to the respondents in show cause notice nor this file was relied upon document in the show cause notice. The contention of the Revenue is that this file was specifically mentioned in Annexure 'B' of the show cause notice and the contents of the file were relied upon in the show cause notice.
5. We find that the show cause notice was issued to the respondents on the ground that raw-naptha, which was received at concessional rate of duty under Chapter X Procedure in terms of Notification 27/89, dated 1-3-89 was not used for the intend purpose as 4475.055 MTs. raw naptha was not accounted for in the statutory record. The Revenue is relying upon the shift-wise record maintained by the respondents based on the reading of flow meter and the Commissioner, in the impugned order, gave a specific finding that the shift-wise record in respect of consumption of raw-naptha is maintained on rough estimate on the basis of flow meter installed with the furnace, which shows the rate of flow at a given point of time and did not indicate the total flow during a particular period as the flow meter was not total-lizer indicating the relevant consumption of raw-naptha. This finding of fact was not controverted by the Revenue even in the appeal. The final order was passed on the ground that above mentioned finding of fact was not controverted by the Revenue and the contents of File No. 6 were not put to the respondents. Even if we agree with the contention of the Revenue now raised that the contents of File No. 6 were put to them, the other finding of fact, which is in favour of the respondents, will clinch the issue. The basis for demand is the shift-wise record maintained on the reading of the flow meter and the flow meters are not totallizers indicating the commulative consumption of the raw-naptha. Therefore, the mere fact that contents of File No. 6 were put to the respondents will not affect the final conclusion drawn in the final order. In these circumstances, the ROM application is rejected.