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TMI Blog2014 (5) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of the coordinate bench? (b) Whether in the facts and circumstances of the case, the Appellate Tribunal is right in holding that the Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008, are clarificatory and retrospective in operation? (c) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in treating the price from the list circulated by the Appellants to their Stockiest as retail price of the package, even when no price was declared on the package? (d) Alternatively and in the event of it being held that Central Excise (Determination of Retail Sale Price of Excisable Goods )Rules, 2008, are clarificatory and retrospective in operation, whether in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal was therefore referred to a third member. The third member held against the appellant/assessee. 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. 4 The respondent has however, raised a question of maintainability of this appeal under Section 35(G) of the Central Excise Act,1944. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v/s CCE Rajkot, the Tribunal by an order dated 12th December 2013 in fact considered the order of the Technical Member and held as follows:- 14:At this juncture, we would like to refer to the submissions made by the ld. Special Counsel for the Revenue that in the case of M/s.Schneider Electrical India Pvt.LTd(supra), Hon'ble Member (Technical) has deferred with the views of Hon'ble Member (Judicial) who has relied upon all these three case laws. In our considered view, the differing Member has incorrectly applied the law in the case of M/s Mahim Patram Pvt Ltd, to take a different view from the views already existing. On perusal of the said decision of Apex Court, in the case of M/s Mahim Patram Pvt Ltd, we find that the Apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rks Contract. The relevant findings of the Apex Court were rendered on this factual aspect as contained in para 27 of the judgment. In our considered view, the ratio decided from this judgment is that merely because the rules were not framed in Central enactment, it would not mean that no tax is leviable if rules have been framed under said enactment and there is a provision for referential incorporation of the said act in the Central act. We are of the view that the ratio laid down by Apex Court in the case of M/s Mahim Patram Pvt Ltd, does not in any manner support the case of the Revenue as well as the view of the differing member in the case of M/s Schneider Electrical India Pvt Ltd; in the cases in hand the ascertainment/ redeterminati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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