Case: THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX HYDERABAD II Vs. BAKELITE HYLAM LTD

2. These appeals arise from a judgment and order of the CESTAT dated 14 July 2016 in Appeal Nos.E/901/2008 and E/906/2008. The adjudicatory authority, on an earlier remand, passed an order-in-original on 12 September 2008, confirming a demand of Rs 1,26,29,491 (after adjusting an amount of Rs 35,52,111) under Rule 9(2) of the Central Excise Rules 1944, together with a penalty of Rs 15,00,000 under Rule 173Q.       The following appeals were filed before the CESTAT:        (i) Appeal No. E/901/2008 filed by the Revenue; and        (ii) Appeal No.E/926/2008 filed by the Assessee.        3. On 3 December 2009, only the appeal of the assessee was listed for hearing. The CESTAT allowed the appeal of the assessee. The CESTAT held that when there was a clear cut finding that the ex-factory price is a genuine price and there being no appeal of the Revenue against the finding, the order of the adjudicatory authority confirming the demand was incorrect and liable to be set aside.        4. In January 2010, the Revenue moved an application for recall of the order of the CESTAT dated 3 December 2009. On 12 June 2012, the CESTAT recalled its order dated 3 December 2009 and listed both the appeals for hearing.        5. By the impugned judgment and order dated 14 July 2016, the CESTAT dismissed the appeal of the Revenue, by relying upon the findings contained in its earlier order dated 3 December 2009 in the assessees appeal bearing No E/926/2008. Inadvertently, the CESTAT has missed the fact that the order dated 3 December 2009 had already been recalled on 12 June 2012. In paragraph 6 of its impugned judgment, the CESTAT has extracted the relevant part of its earlier order dated 3 December 2009. In paragraph 7, the Tribunal observed that, in its earlier order, it had come to the conclusion that the adjudicatory authority having held that the ex-factory price is genuine, the confirmation of the demand was not warranted.

Reasoning:
6. The basis on which the CESTAT has taken a decision, namely, the earlier order of the CESTAT dated 3 December 2009 is flawed since the order relied on has been recalled.