9911796707
TMI Blog2019 (2) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUPREME COURT OF INDIA], that an Explanation cannot override the main provision, and is for a limited purpose to clarify, or fill in any gap, or provide additional support to the dominant object of Rule/Section. There have been a mistake of law in the final order dated 18.04.2018, leading to miscarriage of justice - ROM application allowed. - E/ROM/50926/2018 in A.No. E/51150/2017 - MISC. ORDER NO. 50110/2019 - Dated:- 19-2-2019 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And HON BLE MR. BIJAY KUMAR, MEMBER (TECHNICAL) For the Appellants : Sh. Rohit Choudhary, Adv For the Respondent : Sh. S.K. Bansal, DR ORDER MISC. ORDER NO. 50110/2019 Per Anil Choudhary The present miscellaneous application is filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading to error of law in the Final Order dated 18.04.2018. 3. To support his arguments, he submitted that the correct legal position is that, under Rule 6(2) of the Cenvat Credit Rules, 2004, an assessee is obliged to maintain separate accounts in the manner as prescribed in said Rule 6(2)(a) of the Rules, and the law provides an option to the assessee, that if it so desire, he may maintain common account, exercise one of the options, as contemplated in non-obtante clause, contained in Rule 6(3) of the Cenvat Credit Rules, 2004. He also emphasised that the said Rule 6(3) contains Explanation I. The conjoint reading of said Rule 6(3) would reveal that, it is for the Department that once assessee exercised one of the options as prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option of payment of 5% provided under Rule 6(3)(i) shall be compulsorily made applicable, therefore we are of the view that Revenue could not insist the appellant to avail a particular option. In the present case admittedly it is appellant who have on their own opted for option provided under Rule 6(3)(ii). The meaning of the option as argued by the Ld. Sr. Counsel is that option of right of choosing, something that may be or is chosen, choice, the act of choosing . From the said meaning of the term option‟, it is clear that it is the appellant who have liberty to decide which option to be exercised and not the Revenue to decide the same. [emphasis supplied] 4. The learned counsel also submitted that Explanation cannot i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming hindrance in the interpretation of the same. 5. On the other hand, the learned AR for the Department justified the final order. He submitted that the final order was passed after considering all the facts and circumstances of the case. He also submitted that by the present application, the Appellant is seeking a review of the final order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
