2014 (5) TMI 383 - HC - Central Excise

Maintainability of appeal - waiver of pre-deposit - issue of valuation involved - decision of third member of the tribunal - determination of the retail sale price in the absence of retail sale price being declared on the package prior to 1st March, 2008 - Held that - Prior to the decision of the third member, there was a decision of the Tribunal which supported the appellant s contention before the Tribunal. That decision was brought to the notice of the learned third member before passing the order. The third member was bound to consider the judgment of the Tribunal. He, however, did not do so. We would have had no hesitation therefore in setting aside the order of the third member and remanding the matter to him for passing a fresh order. Respondent has however, raised a question of maintainability of this appeal under Section 35(G) of the Central Excise Act,1944. The respondent contends that this appeal relates to valuation. According to the respondent, therefore, the appeal would be maintainable only before the Supreme Court under Section 35(L) of the Act. In view thereof, we are not inclined at this stage to dispose of the appeal on this ground. - appeal is accordingly admitted, but subject to the point of maintainability. There shall be adinterim order in terms of prayer clause (b). However, the statement on behalf of the appellant that the tax has been paid and will be continued to be paid with effect from April 2008 is accepted and it is so ordered. - appeal admitted - stay granted.

Issues:
1. Appellate Tribunal's adherence to Final Orders
2. Retroactive application of Central Excise Rules
3. Determination of retail price without declaration on package
4. Consideration of stockiest price as MRP
5. Reliance on dealers' statements without cross-examination
6. Sustainability of demand for extended period
7. Perversity in Tribunal's findings
8. Requirement of retail price declaration on packages
9. Sustainment of demand, interest, and penalty
10. Dismissal of appeal by the Appellate Tribunal
11. Maintainability of appeal under Central Excise Act

Analysis:
1. The primary issue raised was whether the Appellate Tribunal correctly followed its Final Orders in several cases regarding the determination of retail sale price. The Tribunal held that without rules under Section 4A of the Act, the Respondents lacked jurisdiction to determine prices without retail sale price declarations before March 1, 2008, as cited by the Appellants.

2. Another issue was the retroactive nature of the Central Excise Rules, 2008, determining the retail sale price. The Appellate Tribunal deemed these rules as clarificatory and retrospective, raising questions about their application in the case.

3. The Tribunal's decision on treating the price from the list circulated by the Appellants to their stockiest as the retail price of the package, despite no price declaration on the package, was also contested.

4. Additionally, the Tribunal's consideration of the actual list price of the stockiest as Maximum Retail Price (MRP) in case of retroactive rule application was questioned alternatively.

5. The issue of reliance on dealers' statements without offering them for cross-examination by the Respondent was raised, highlighting procedural fairness concerns.

6. The sustainability of the demand for the extended period and the Tribunal's reliance on irrelevant documents were challenged, questioning the validity of the Tribunal's findings.

7. The determination of whether the Appellants' switchgear products were commodities in packaged form and the requirement to declare retail prices on packages under the Standard of Weights and Measures Act, 1976, was also a significant issue.

8. The Tribunal's decision to sustain the demand, interest, and penalty was disputed, along with the dismissal of the appeal by the Appellate Tribunal, raising questions about the overall outcome of the case.

9. Lastly, the Respondent raised the issue of the appeal's maintainability under Section 35(G) of the Central Excise Act, contending that it related to valuation and might only be maintainable before the Supreme Court under Section 35(L) of the Act, adding a procedural aspect to the case.

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