2010 (11) TMI 219 - AT - Central Excise

Rectification of mistake - Clandestine clearances - In the order dated 20-3-2001 2001 -TMI - 50699 - CEGAT NEW DELHI the Tribunal while remanding the matter for de novo adjudication had observed that it is settled law that gross price realized by a manufacturer can only be treated as cum-duty price and this is equally so in respect of clandestinely cleared goods also - no evidence was produced to prove that the price realized in respect of clandestine clearances included duty also - Therefore there is no mistake apparent from record in this order - The same is dismissed

Summary

Issues:
Rectification of mistake in Final Order regarding duty demand calculation.

Analysis:
The application under Section 35-C(2) of the Central Excise Act, 1944 sought rectification of a Final Order by the Tribunal. The Appellant requested the deletion of specific paras from the order. The Appellant argued for treating the price realized from customers without payment of duty as cum-duty price, citing relevant judgments. The Tribunal had disallowed abatement of Central Excise duty in the order, which the Appellant contended was settled in their favor previously. The Appellant sought rectification based on this argument.

The Consultant representing the Appellant argued that the Tribunal's findings were a mistake apparent from the record and should be rectified. The Respondent's representative opposed the Rectification of Mistake (ROM) Application, stating it was a point of law to be challenged in an appeal before the Appellate Authority, not the Tribunal. The Tribunal considered both sides' submissions and the records, focusing on the Appellant's plea regarding the treatment of price realized in clandestine clearances as cum-duty price based on Supreme Court judgments.

The Tribunal referenced previous judgments and distinguished the present case from them, emphasizing the need for evidence regarding duty inclusion in price realization for clandestine clearances. The Tribunal highlighted that treating such prices as cum-duty and allowing abatement would reward tax evasion, contrary to statutory intent. The Tribunal explained the formula for determining assessable value from cum-duty price and emphasized the legislative intent against rewarding tax evasion.

The Tribunal noted that the question of law raised by the Appellant should be challenged in the appellate forum, not as a mistake apparent from the record. Consequently, the Tribunal found no merit in the application and dismissed it. The judgment was pronounced on 23-11-2010, emphasizing the need for legal challenges to points of law through the appropriate appellate channels.

This detailed analysis of the judgment showcases the legal arguments, interpretations of relevant laws and precedents, and the Tribunal's reasoning in dismissing the application for rectification of mistake in the Final Order.