V.K. Agrawal, Member (T) - (1.)THESE are two applications filed by M/s. Enterprises and S.K. Electronics for rectification of mistake said to have crept in Tribunal's Misc. Order Nos. M/1 -10/20QO -NB, dated 10 -1 -2000 [2000 (116) E.L.T. 364 (Tribunal)].
(2.)SHRI Ajay Jha, learned Advocate, submitted that the appellants manufacture, stamping and lamination and avail of Modvat credit of the duty paid on the inputs used in or in relation to the manufacture of their final product; that the Assistant Commissioner disallowed the Modvat credit on the ground that the Modvat credit cannot be availed of on the challan issued by Steel Authority of India Ltd., which were endorsed twice; that the Commissioner (Appeals) also rejected their appeals; that their appeals filed before the Madras Bench of the Tribunal were also rejected; that the Hon'ble Bangalore High Court in Writ Petition Nos. 34159 -34160/1997 quashed the order passed by the Tribunal and restored the appeal filed by them; that the Hon'ble High Court, further, directed the President of the Tribunal to constitute a Larger Bench. The learned Advocate, further submitted that a Larger Bench of the Tribunal was constituted to consider the appeals filed by them along with the various other appeals; that the Tribunal vide its order dated 10 -1 -2000 decided the questions arisen in other appeals; that however, issue arising in their appeals was not dealt with; that, therefore, applications filed for rectification of mistake which were dismissed as withdrawn vide Tribunal's Misc. Order No. M/102 -103/2001 -NB, dated 18 -5 -2001. The Learned Advocate mentioned that the issue involved in their appeal is whether the invoices endorsed more than once is a valid document under Rule 57G of the Central Excise Rules, 1944 as it existed prior to 1 -4 -94; that the dispute in their appeals is not with regard to endorsement of invoices raised after 1 -4 -94; that it appears that inadvertently the issue involved in their appeals was not referred to Larger Bench for consideration, that after withdrawal of their ROM applications, the matters were posted for hearing before the Regular Bench of the Tribunal at Bangalore, which directed them to file a fresh ROM application in view of the order dated 17 -2 -98 of the Hon'ble High Court of Karnataka. The learned Advocate, therefore, contended that as Hon'ble High Court had directed the question to be considered by a Larger Bench and as the Larger Bench had not considered the question in the case of M/s. Balmer Lawrie & Co. Ltd. and others [2000 (116) E.L.T. 364 (Tribunal)], a mistake has crept into the order which requires to be rectified. He emphasized that non consideration of the issue arising in their appeals by the Larger Bench is a mistake in terms of Section 35 'C' of the Central Excise Act which requires to be rectified by the Larger Bench.
Opposing the prayer, Shri M.M. Dubey, learned Departmental Representative submitted that following two issues were referred to Larger Bench in the case of Balmer Lawrie & Co. Ltd : -

(1) Whether the invoices issued by unregistered dealers can be accepted as valid documents for claiming Modvat credit and

(2) Whether the endorsed invoices can be considered as valid documents for claiming Modvat credit after 1 -4 -94.

That the Larger Bench of the Tribunal in the Misc. Order dated 10 -1 -2000 decided these two issues and the Larger Bench also mentioned in the said decision that the appeals be placed before the respective Bench for disposal on merits; that it is not disputed by the appellants that the issues referred to the Larger Bench has been answered by me Larger bench and as such no mistake has crept in the Misc. Order dated 10 -1 -2000; that the Larger Bench has to answer the issues referred to it and is not to answer the questions which have not been referred to it; that, therefore, there is no mistake apparent from the record; that if the issue involved in their appeals have not been referred to Larger Bench, the Bench hearing their appeals can refer the matters to the Hon'ble President for constituting the Larger Bench.

(3.)WE have considered the submissions of both the sides. It has been mentioned by the applicants themselves in their applications that the issue involved in their appeals was not referred to the Larger Bench for consideration; that their appeals were listed for hearing along with other appeals before the Larger Bench. It is also not the case of the applicant that the issues which were referred to the Larger Bench have not been answered by the Larger Bench. The Larger Bench, as rightly pointed out by the SDK answers the issue referred to it. Once the issue involved in the appeals filed by the Applicants herein was not referred, the question of answering the same does not arise. In view of these facts/ it cannot, therefore, be claimed that any mistake has crept into the Misc. Order Nos. M/1 -10/2000, dated 10 -1 -2000 [2000 (116) E.L.T. 364 (Tribunal)]. We accordingly, reject both the applications. The appellants are at liberty to pursue their appeals before the Bangalore Bench of this Tribunal -in pursuance of the directions of the Hon'ble High Court of Karnataka and mention the directions as contained in the High Court's Order dated 17 -2 -98.