2009 (6) TMI 507 - AT - Central Excise

Stay application- there was an objection of the Revenue that the appeal memo and the stay application were not signed by the principal officer of the appellants. To this objection based under Rule 8(3) of the CESTAT (Procedure) Rules, 1982, we granted an opportunity to the appellant to remove the defect since we felt that this is a curable defect. when the appellant has removed part of the goods for independent sale and part of the goods for its captive consumption, whether it shall be governed by Rule 4 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 or by Rule 8 thereof? Held that- We have considered the rival submissions and are of the view that the assessee is correct in contending that provisions of Rule 8 would apply only in a case where its entire production of a particular commodity is captively consumed. second challenge is that the appellant was deprived of the process of natural justice and limitation. Held that- it is in favour of appellant.

Issues Involved:
1. Maintainability of the appeal and stay application.
2. Applicability of Rule 4 or Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.
3. Alleged violation of principles of natural justice.
4. Time-barred nature of the proceedings.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal and Stay Application:
The Revenue objected to the maintainability of the appeal and the stay application on the grounds that they were not signed by the principal officer of the appellants as required under Rule 8(3) of the CESTAT (Procedure) Rules, 1982. The Tribunal allowed the appellant to cure this defect, deeming it curable. The appellant submitted an affidavit stating that the signatory, Shri Ashok Kumar Sharma, was authorized by a Board resolution dated 27th March 2002, to sign and verify the documents. The Tribunal examined Rule 8 and concluded that the rule allows the memorandum of appeal to be signed by either the appellant, applicant, respondent, or a principal officer duly authorized. The Tribunal ruled that the appellant had satisfied the legal requirements, thus overruling the Revenue's objection regarding the maintainability of the appeal and the stay application.

2. Applicability of Rule 4 or Rule 8:
The appellant argued that the goods should be valued under Rule 4 since they were partly sold and partly used for captive consumption. Rule 8, according to the appellant, applies only when the entire production is captively consumed. The Tribunal referred to the Larger Bench decision in ISPAT Industries Ltd. and other precedents, which supported the appellant's view that Rule 8 applies only when the entire production is captively consumed. The Tribunal noted the Revenue's reliance on a Board Circular clarifying that goods partly sold and partly captively consumed should be valued under Rule 4 for the sold portion and Rule 8 for the captively consumed portion. However, the Tribunal decided that this matter required further interpretation and should be resolved through the appeal process.

3. Violation of Principles of Natural Justice:
The appellant contended that the adjudication was based on a revised Cost Audit report, which was not confronted with the appellant, thus violating the principles of natural justice. The Tribunal acknowledged that the appellant had a valid point regarding the violation of natural justice, as the revised report was not shared with the appellant. The Tribunal cited several judicial precedents supporting the appellant's right to access documents relied upon in the adjudication process. The Tribunal decided that this issue warranted a remand for a fair hearing, but also noted that the matter required interpretation, which should be addressed through the appeal.

4. Time-barred Nature of the Proceedings:
The appellant argued that the proceedings were time-barred since the Revenue was aware of the appellant's operations and had access to the necessary information through regular returns. The Tribunal recognized the appellant's long-standing presence and the absence of any allegations of non-filing of returns. The Tribunal noted that the Revenue had not demonstrated any intent to evade duty on the appellant's part. Therefore, the Tribunal found merit in the appellant's argument regarding the time-barred nature of the proceedings.

Conclusion:
The Tribunal decided to maintain the status quo until the disposal of the appeal, recognizing the need for a thorough interpretation of the relevant rules and principles. The Tribunal scheduled an expedited hearing for 22nd September 2009, ensuring that the matter would be addressed promptly. The Tribunal's decision to protect the appellant at the interim stage was based on the principles laid down by the Apex Court in relevant cases.

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