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2. In pursuance of notice under Section 11A of the Act, Order-in-original was passed by the adjudicating authority, creating demand for excise duty due with interest and penalty. In the said order, it was found that two concerns namely appellant M/s Box & Carton India Pvt. Ltd. (BCI) and Super Fine Packaging (SFP) were one unit and claim of the assessee for treatment of SFP as Small Scale Industry (SSI) was not acceptable. The said unit was not separate but another unit of BCI. Claim for CENVAT Credit was also rejected on the ground that BCI failed to furnish documents showing procurement of raw material by SFP or showing that SFP had made the requisite export sale. Against the said order, appeal of the appellant was dismissed by the Hon'ble Supreme Court. Thereafter, the appellant filed an application for rectification under Section 35C(2) of the Act. It was submitted that necessary details in relation to necessary invoices was furnished to the adjudicating authority for claiming Cenvat Credit and this issue was specifically raised before the Tribunal but the said documents were not considered and thus, there was error apparent on the face of records. The Tribunal after duly considering the application for rectification, held that appeal of the appellant having been dismissed, the issue could not be gone into again, as held in Abhai Maligai Partnership Firm v. K. Santhakumaran 1998 (7) SCC 386 (SC). It was further observed that there was nothing to show that that Commissioner was seized with the invoices, as submitted.

3. Learned counsel for the appellant submitted that it was wrongly observed in the earlier order of the Tribunal that finding recorded by the Tribunal in order dated 24.4.2008 in para 7 that BCI has neither furnished the documents showing procurement of raw material by SFP nor showing export sales, was erroneous. We are unable to accept the submission. The order of the Commissioner, inter-alia, reads as under:-

"101. BCI has disputed the quantification of duty demanded on the grounds that they are eligible to claim credit of Rs.12,74,311/- being excise duty paid on various inputs used by SFP for manufacturing in their unit. But, they have failed to furnish any evidence to show that the raw material used by SFP have suffered Central Excise Duty. BCI on beign asked to furnish the evidences has vide their letter 14.6.05 submitted that detail of suppliers of inputs which is not the proper document to avail CENVAT credit.