Adarsh Kumar Goel, J. - (1.) THIS appeal has been preferred under Section 35G of the Central Excise Act, 1944 (for short, "the Act") against the order of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 16.12.2009 proposing to raise following substantial questions of law: A. Whether the Hon'ble Tribunal erred in dismissing the Rectification Application moved by the Appellant as not maintainable? B. Whether the order passed by the ld. CESTAT can be said to have merged with the order passed by the Hon'ble Supreme Court during preliminary hearing C.E.A. No. 192 of 2010 without notice to the Respondent and without a detailed hearing on merits? C. Whether the judgment of the Hon'ble Supreme Court in the case of Kunhayamed v. State of Kerala does not operate in a different sphere from the earlier judgment of the Hon'ble Supreme Court in U.J.S. Chawla v. State of Punjab? D. Whether the contentions raised in the Application for Rectification which fell within the jurisdiction of the Hon'ble Tribunal were hit by principles akin to Res Judicata for not having been raised before the Hon'ble Supreme Court? E. Whether in view of the fact that the relevant Invoices which were seized by the Department continued to remain with them, the Appellant could be denied the benefit of Input Credit on the ground of failure to produce the relevant Invoices? F. Whether the Hon'ble Tribunal erred in holding that the ROM moved by the Appellant did not make out a case on merits? G. Whether the Panchnama does not constitute prima facie evidence of seizure of the documents by the Department, thereby shifting the onus on the Department to establish the documents were not available with them?
(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 C.E.A. No. 192 of 2010 (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. 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, C.E.A. No. 192 of 2010 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. 102. Similarly, BCI has pleaded that SFP made exports sale of Rs. 36,29,012/ - involving excise duty of Rs. ,80,642/ - during the disputed period but have not furnished any corroborative evidence in their support. I am, therefore, unable to accept the claim.
(3.) IN view of above, the Tribunal was justified in observing that the Commissioner had gone into the issue and found that there was no acceptable evidence in support of claim for export sales and purchase of raw material, on which excise duty has been paid.;