2009 (11) TMI 444 - AT - Central Excise

Rectification of mistake- This application filed by the assessee (appellant) seeks rectification of what they consider to be a glaring mistake in Final Order. The main challenge in the said appeals was against a demand of differential duty for the period 1999-2000 to 2003-04 total ling to Rs. 1,28,55,322.70. In the impugned order, the ld. Commissioner had demanded duty of Rs. 34,62,462.86 from the assessee for the period 1999-2000 and duty of Rs. 90,89,490.56 for the rest of the period. The demand of duty for the first period (1999-2000) of dispute was set aside by this Tribunal in the above final order, on the ground that the assessee had correctly determined the assess able value of the goods on the basis of the price charged in their sales to independent unrelated buyers for the said period. As regards the second part (2001 to 2003-04) of the period of dispute, the demand of duty with interest thereon was sustained by the Tribunal, after accepting the assessable value determined by the Asstt. Director (Cost) of the Department. In the present application, two mistakes are pointed out. Held that- legal position not taken into account by Tribunal in impugned order. Mistake glaring and need rectification.

Summary

Issues:
Rectification of mistake in the final order regarding demand of duty for the period 1999-2000 and 2001-2003, Assessable value determination, Appointment of Asstt. Director (Cost) under Section 14A of the Central Excise Act, Legal position regarding engagement of a Cost Accountant, Applicability of Bausch & Lomb (India) Ltd. case.

Analysis:
The judgment revolves around an application seeking rectification of a mistake in the final order related to the demand of duty for the periods 1999-2000 and 2001-2003. The initial appeal challenged a demand of differential duty totaling Rs. 1,28,55,322.70, with specific amounts for each period. The Tribunal set aside the demand for the first period based on the correct assessable value determination by the appellant. However, for the second period, the demand was sustained based on the Asstt. Director (Cost)'s assessment, which the appellant contested, citing independent sales to unrelated buyers during that time.

The judgment highlights two main mistakes pointed out by the appellant. Firstly, the Tribunal erred in accepting the Asstt. Director (Cost)'s assessable value determination for the second period despite independent sales existing. Secondly, the appointment of the Asstt. Director (Cost) under Section 14A of the Central Excise Act was inappropriate, as a Cost Accountant should have been appointed as per the legal provisions. The appellant referenced the Bausch & Lomb (India) Ltd. case to support their arguments, emphasizing the need for compliance with the Cost and Works Accountants Act.

After careful consideration, the Tribunal acknowledged the mistakes in the final order. It agreed with the appellant's contentions regarding the incorrect assessable value determination and the improper appointment of the Asstt. Director (Cost). The judgment emphasized the legal requirement for engaging an independent Cost Accountant for such assessments, as clarified in previous case law and statutory provisions. Consequently, the Tribunal allowed the application, recalled specific paragraphs of the final order, and substituted them to reflect the correct legal position and assessment methodology.

In conclusion, the judgment modified the final order, setting aside the entire demand of duty for both periods. It also absolved the appellant and the company's Director from any penalties. The decision underscored the importance of adhering to legal provisions and engaging qualified professionals for assessable value determinations in excise matters, ensuring compliance with the Central Excise Act and relevant case law.