2018 (9) TMI 1433 - HC - Central Excise

Appeal dismissed on pre-judging the issue - appropriate formula to determine the use of raw materials - Held that - The Tribunal, at the very outset, merely cited and relied upon the Settlement Commission s order, and proceeded to follow it without addressing itself as to whether in the present case that formula was applicable at all or when adverting or even taking into consideration the appellant s submissions on the merits with respect to the inapplicability of the Settlement Commission s formula in the context of its submissions that the period in question involved a separate product. This Court is of the opinion that the remand order should be appropriately modified - The impugned order is accordingly modified; the Commissioner shall while examining the matter afresh take into consideration the facts of the case as based upon the materials and evidence led before him to determine as to what is the appropriate ratio for deciding the increased weight as well as the percentage of Snuff and Tobacco in respect of the new product Premium Khaini for the period April, 2006 to 07.03.2010. 2017 (12) TMI 217 - CESTAT NEW DELHI

Summary

Issues:
1. Pre-judgment of the issue by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding the appropriate formula for determining the use of raw materials.
2. Allegation of failure to consider basic contentions regarding different ratios of raw materials for a separate product.
3. Modification of the remand order by the High Court.

Analysis:

1. The appellant's appeal to the CESTAT was rejected based on the use of a formula by the Settlement Commission to determine the weight of Tobacco and the percentage of Snuff. The High Court noted that the CESTAT merely followed the Settlement Commission's order without assessing the applicability of the formula. The High Court found that the CESTAT did not address the appellant's submissions on the inapplicability of the formula for a separate product. Therefore, the High Court concluded that the remand order needed modification. The Commissioner was directed to re-examine the case considering the evidence to determine the appropriate ratio for the new product 'Premium Khaini' for a specific period.

2. The appellant had received show cause notices for different periods and products, with one notice invoking an extended period of limitation. The appellant approached the Settlement Commission, which applied a formula to determine the weight of Tobacco and Snuff. The appellant argued that the CESTAT did not consider the distinct raw material ratios for the new product 'Premium Khaini'. The High Court agreed that the CESTAT failed to address this crucial contention, leading to the modification of the impugned order. The High Court emphasized the need for the Commissioner to consider the case based on the evidence presented.

3. The High Court allowed the appeal in favor of the appellant, modifying the impugned order to ensure a proper examination of the case by the Commissioner. The High Court directed the Commissioner to determine the appropriate ratio for the weight of Snuff and Tobacco in the new product 'Premium Khaini' for a specific period. This modification aimed to rectify the failure of the CESTAT to address the appellant's contentions regarding the separate product and its raw material ratios, ensuring a fair adjudication of the matter.

This detailed analysis highlights the key issues addressed in the judgment, focusing on the failure of the CESTAT to consider the distinct raw material ratios for the separate product and the subsequent modification of the remand order by the High Court for a fair examination of the case.