2019 (5) TMI 583 - AT - Central Excise

Rectification of Mistake - is it permissible to ascertain RSP for the purpose of assessment under Section 4A of CEA, 1944, in respect of clearances made prior to issue of notification 13/2008-CE(NT) dated 1-3-2008? - Ld. Counsel pointed out that this ROM application is with reference to order of the Tribunal dated 10.01.2019. He pointed out that the said order is an interim order referring certain issues to Hon'ble President for constitution of Larger Bench. HELD THAT - The issue regarding liability to pay Central Excise duty of manufacturer vis. a. vis dealer also needs to be referred to the Larger Bench - necessary deletions and substitutions made - ROM disposed off. Registry is directed to place the matter before the Hon'ble President for doing the needful.

Summary

Issues:
Rectification of mistake in an interim order referring issues to Larger Bench.

Analysis:
The applications for rectification of mistake were filed by two companies regarding an interim order dated 10.01.2019 referring certain issues to the Hon'ble President for constitution of a Larger Bench. The counsel argued that such matters can be considered by the Tribunal in Rectification/Review jurisdiction, citing a decision of the Hon'ble Bombay High Court. The issues referred to the Larger Bench were whether the RSP for assessment under Section 4A could be revised before the issuance of a specific notification and if liability could be imposed on the manufacturer if the retail sale price was altered by a dealer after goods clearance.

The counsel contended that the order departed from the findings of a coordinate bench in a previous case and argued that the bench should have referred the matter to a Larger Bench following judicial discipline. The order highlighted that in cases where alteration of RSP was done by the dealer in collusion with the manufacturer, the liability to duty could be imposed on the manufacturer. The Tribunal found that the issue regarding the liability of the manufacturer vis-a-vis the dealer needed to be referred to the Larger Bench for resolution of conflict.

The Tribunal referred to a decision of the Hon'ble Apex Court emphasizing the importance of judicial discipline in referring matters to a Larger Bench when there is a conflict in decisions. Consequently, modifications were made in the order to reflect the need for the issue of liability to be referred to the Larger Bench for resolution. The miscellaneous applications for rectification of mistake were disposed of accordingly, with directions to place the matter before the Hon'ble President.