2010 (12) TMI 37 - HC - Central Excise

Finished Goods - Entry in RG 1 registered - when goods required to be entered in RG 1 - whether confirmation is required from the buyer before entry in RG 1 register - Held that - the CESTAT has disposed of the Appeal on a ground which was not urged by the Respondents before the Adjudicating Authority. Thereby the CESTAT has disposed of the Appeal on a totally new ground which was not before the Adjudicating Authority and which would entail a finding on facts. If the CESTAT was not satisfied with the approach of the Adjudicating Authority the least it could have done was remanding the matter back to the Adjudicating Authority but could not have assumed to itself the jurisdiction to decide the Appeal on a ground which was not urged before the lower authorities

Summary

Issues Involved:
1. Whether the goods were required to be entered in RG I.
2. Whether the Tribunal was justified in holding that the goods were not confirmed by the buyer and thus not required to be entered in RG I.
3. Whether the Tribunal failed to consider the provisions of Rule 173Q(1) of the Central Excise Rules, 1944.

Detailed Analysis:

1. Requirement to Enter Goods in RG I:
The central issue was whether the 672 bags of sodium salt, found packed and ready for dispatch, were required to be entered in the RG I register. The Revenue argued that the goods were fully manufactured and should have been recorded in the RG I register as per Rule 53 of the Central Excise Rules, 1944. The Adjudicating Authority found that the goods were not accounted for in the statutory records, leading to a contravention of the rules. The Respondents, however, contended that the goods were awaiting quality control test results and thus were not marketable, hence not required to be entered in the RG I register.

2. Justification Based on Buyer Confirmation:
The Tribunal held that since there was no confirmation from the buyer that the goods met their specifications, the goods were not required to be entered in the RG I register. The Revenue challenged this view, arguing that the Tribunal erred in accepting the Respondents' claim about buyer confirmation, which was not raised before the Adjudicating Authority. The Tribunal's decision was based on the assumption that the goods were not marketable without buyer confirmation, thus not necessitating entry in the RG I register.

3. Consideration of Rule 173Q(1):
The Revenue asserted that the Tribunal failed to consider the provisions of Rule 173Q(1), which mandates confiscation and penalties for non-accounted goods. The Adjudicating Authority had initially imposed a penalty and ordered confiscation under this rule. However, the Commissioner (Appeals) and subsequently the Tribunal set aside these orders, focusing on the absence of findings related to clandestine removal and intent to evade duty. The Tribunal's decision was based on the assumption that the entire adjudication process was flawed, relying on assumptions and presumptions.

Conclusion:
The High Court found that the Tribunal disposed of the appeal on a ground not urged before the Adjudicating Authority, which was improper. The Tribunal should have remanded the matter back to the Adjudicating Authority for reconsideration rather than deciding on a new ground. Consequently, the High Court quashed the Tribunal's order and remitted the matter back to the Tribunal for de novo consideration, directing it to hear and dispose of the appeal within three months. All contentions were kept open for reconsideration.