TMI Blog2010 (11) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... BR) - 679/2010-EX(PB) - Dated:- 23-11-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, REPRESENTED BY : Shri J.M. Sharma, Consultant, for the Appellant. Shri K.P. Singh, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - This is an application under Section 35-C(2) of Central Excise Act, 1944 for rectification of mistake in Final Order No. 181-183/2010, dated 9-4-2010 [2010 (258) E.L.T. 225 (Tri. - Del.)] passed by the Tribunal in respect of Appeal No. E/3431/2005 filed by the Appellants. The Appellant in this application pray for deletion of para 4(e), 9, 9.1 and 9.2 of the order dated 9-4-2010. 2. Heard both sides. 3. Shri J.M. Sharma, Consultant, the learned Counsel representing the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned DR, opposing the ROM Application, pleaded that the point raised by the appellant is not a mistake apparent from the record but is a point of law which must be taken up by the appellant before the appellate Authority in their Appeal against the Tribunal s order and that the Tribunal is not the proper forum for this. 5. We have carefully considered the submissions from both the sides and perused the records. Since during the course of hearing of appeal, a specific plea had been made on behalf of the Appellant that the price realized by the Appellant company in respect of clandestine clearances must be treated as cum-duty price in view of Hon ble Supreme Court s judgments in the case of CCE, Delhi v. Maruti Suzuki Ltd. (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the price charged by the assessee includes the element of excise duty and if so, to what extent and in such a situation, treating the price charged for clandestinely cleared goods as cum-duty price and permitting abatement of excise duty presumed to have been paid for the purpose of determining the assessable value would result in the tax evader being rewarded by lower duty liability. Similarly in a case where a 100% EOU deliberately clears the goods actually manufactured in its factory, from its DTA unit at nil rate of duty by claiming some duty exemption available to DTA units, by falsely claiming the goods to be manufactured in DTA unit, the EOU on being caught and asked to pay the duty in terms of proviso to Section 3(1) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty presumed to have been paid is allowed and thereby considerably reducing the tax evader s duty liability, it would amount to rewarding the tax evasion, which would be against one of the basic principles of interpretation of Statutes that the interpretation to be adopted must be the one which advances the remedy and suppresses the mischief. Therefore, when the Section 4(4)(d)(ii) of Central Excise Act, 1944 as it stood during period prior to 1-7-2000 and Section 4(3)(d) of the Act, as it stood during the period w.e.f. 1-7-2000 provided that the normal price/transaction value does not include the duty of excise, sales-tax and other taxes if any, actually paid or payable, it could not be the intention of the legislature to provide for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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