Satish Chandra. J. - (1.) THE present appeal is filed by the appellant under Section 35 -G of the Central Excise Act, 1944, against the impugned order, dated 1 -6 -2004 passed in Appeal No. 418 -422 of 2004; Misc. Order No. 181 of 2005, dated 8 -7 -2005 [ : 2005 (189) E.L.T. 36 (Tri. - Del.)], by Customs, Excise and Service Tax Appellate Tribunal, New Delhi. On 7 -7 -2009 a coordinate Bench has admitted the appeal on the following substantial question of law: "Whether while disposing of the application (ROM) moved by the appellant the mistake pointed out in the application (ROM) was found debatable and requires reappreciation of entire facts on records but the same was rejected on the ground that the Tribunal had no jurisdiction as the scope of the ROM is too limited. The order of the learned Tribunal, dated 8 -7 -2005 is prima facie erroneous in law -
(2.) THE brief facts of the case are that the appellant -assessee was engaged in the manufacturing of Lead Alloys, Pure Lead and unwrought lead and are availing MODVAT credit on the inputs that are utilized in the manufacture of the same. The raw material is lead scrap in the form of lead ingots and re -melted lead ingots which are off grade material. On 6 -9 -1999, a team of Central Excise Officers had made a surprise visit to the factory of M/s. Gupta Pigments & Chemicals Ltd. (in short GPCL) and checked physical stock of finished goods and inputs, whereupon an excess stock of 105.740 metric tonnes of lead ingots (finished product). The team also visited the premises of the appellant on the same day and found excess stock of 15.020 metric tonnes of lead ingots (finished) vis   -vis the recorded balance in RG -1 register as also shortages of 274.629 of lead ingots (input) and 100 kgs. of white lead (input) were noticed vis   -vis the respective stock balances recorded in RG 23A Part 1 register. The stock verification was done in the presence of General Manager, Production Manager and independence witnesses, who have also signed the Panchnama. The assessee has given an explanation that the excess stock was borrowed from M/s. Met Trade India Ltd. (MTIL., for short) i.e. appellant. So, they levied the duty and also imposed various penalty, which were confirmed by the First Appellate Authority. However, the Tribunal has given the partial relief. Not being satisfied the assessee moved a rectification application, which was rejected by the Tribunal. Being aggrieved, the assessee has filed the present appeal.
(3.) WITH this background Shri Anil Sharma, the learned counsel for the assessee -appellant submits that there is apparent mistake from the record, so the impugned order needs rectification. According to the learned counsel the plant and machinery of the appellant is fully automatic which manufactured ingots with uniform weight of 20 kgs. However, the weight of 278.274 metric tonnes of ingots seized from GPCL varied from 18.70 kgs. to 19 kgs. each and which were in the nature of raw material only. The factory was running in three shifts. There was no malafide intention on the part of the appellant so it could not be penalized. The Tribunal has committed some errors apparent on the face of the impugned order. For the purpose, the appellant preferred a Rectification of Mistake Application (ROM), which was dismissed by the Tribunal. The learned counsel also submits that while dismissing the said ROM application the Tribunal observed that the issue is debatable and requires reappreciation.;