P.G. Chacko, Member (J) - (1.)THESE are applications to recall Final Order No. 1495/2005 dated 23.11.2005 since reported in 2005 -TIOL -1302 -CESTAT -MAD and 2006 (195) ELT 304 (Tri. Chennai), one of these applications by the appellants and the other by the Department. Both the applications point out the same error, which is to the effect that CENVAT credit was allowed to the appellants in respect of MS wires received from the manufacturer thereof during the period 29.5.2003 - 31.3.2004, in view of an amendment which was only proposed, and not enacted, in respect of Rule 16(3) of the Central Excise Rules, 2002.
(2.)AT the supplier's end, the wires were drawn from wire rods. The Department took the view that, as the above activity of drawing of wires from rods did not amount to 'manufacture' within the meaning of Section 2(f) of the Central Excise Act, the goods (wires) supplied to the appellants was not dutiable and consequently not 'cenvatable'. On this basis, the Department, by a show -cause notice, asked the appellants to reverse the CENVAT credit taken on the wires as also to pay interest thereon. This demand was contested. The lower authorities rejected this contest and upheld by the above view of the Department. Hence the appeal before the Tribunal.
(3.)WHEN the appeal arose for final hearing, learned Counsel for the appellants submitted that they were entitled to the above credit in view of the provisos "added" to Rule 16(3) ibid. In this connection, he filed the text of "The Taxation Law (Amendment) Bill 2005", which indicated that two provisos (vide extract in para 3 of Final Order No. 1495/2005 ibid) were proposed to be added to Rule 16(3) of the Central Excise Rules 2002 vide Section 36 of the Taxation Laws (Amendment) Bill 2005. Learned SDR perused the above provisions of the Bill and acknowledged retrospective enactment thereof. It was not in dispute that the above provisions upon enactment entitled the appellants to take CENVAT credit of the duty paid on the wires received from the supplier. Consequently, the decision of the Tribunal went in favour of the appellants.
Today, in the applications before me, both sides say that the proposal contained in the above Bill for amending Rule 16(3) of the Central Excise Rules 2002 had not been made into law at the time when the above final orders was passed. The affidavit filed in support of the application of the appellants claims that they had believed bona fide that the proposed amendment had already been enacted at the time of passing of the final order. In support of this claim, learned Counsel produces a few Orders -in -Original passed by adjudicating authorities prior to the date of the final order. Reference is also made to an order passed by the Commissioner (Appeals), Chennai on 17.10.2005. While the appellate Commissioner's order cited by counsel speaks of 'law being amended retrospectively', one of the Orders -in -Original placed before me drops a show -cause notice in view of 'amendment to Rule 16 of the Central Excise Rules 2002'. Speaking for himself, learned Counsel submits that it was his mistake that he represented before the Bench that the Bill had become Act. He apologizes for the mistake. Speaking for herself, learned SDR submits that she was also under the impression that the Taxation Laws (Amendment) Bill 2005 introduced in Parliament in May 2005 had become law by the time the final order was passed (November 2005).