[Order]. - P.C. : Admit, on the following substantial questions of law :
(a) Whether the Appellate Tribunal was right in not following its Final Orders in the cases (I) Millennium Appliances India Ltd. v. Commissioner of Central Excise, Hyderabad reported in [ (Tri.-Bang.)]; (ii) ABB Ltd. v. Commissioner of Customs, Bangalore reported in [ (Tri.-Bang.)]; (iii) Ravi Food Pvt. Ltd. v. Commissioner of Central Excise, Hyderabad reported in [ (Tri.-Bang.)]; (iv) Final Order No. A/1773-1776/2013/ CSTB/C-I in the case of Legrand India Private Limited [ (Tri. - Mum.)]; and (v) Final Order No. A/11683-11693/2013, dated 12-12-2013 in the case of Mesrs. Acme Ceramics and others [ (Tri. - Ahmd.)]; holding that in the absence of the Rules being framed under Section 4A of the Act, the Respondents have no jurisdiction to determine the retail sale price in the absence of retail sale price being declared on the package prior to 1st March, 2008 when the Appellants specifically cited before the Appellate Tribunal the orders 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 circumstance of the case, the Appellate Tribunal was right in taking the actual list price of the stockiest as MRP?
(e) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in relying upon the statements of the dealers of the Appellants without being offered for cross examination by the Respondent?
(f) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in holding that the demand for the extended period is sustainable?
(g) Whether the findings recorded by the Appellate Tribunal for sustaining the extended and relying upon the irrelevant documents and is perverse in the legal sense of the term?
(h) Whether the switchgear products of the Appellants are commodity in packaged form within the meaning of Standard of Weights and Measures Act, 1976 and Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and the Appellants were required to declare the retail price on the packages of their switchgear products?
(i) Whether the Appellate Tribunal was right in sustaining the demand, interest and penalty?
(j) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in dismissing the appeal of the Appellants?
2. The appellant seeks interim reliefs.
3. We would have decided this appeal at the stage of admission itself on the first question raised by the appellant. There was a difference of opinion between the Judicial Member and the Technical Member. The appeal 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 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.
5. The appeal is accordingly admitted, but subject to the point of maintainability.
6. In the exceptional facts of this case, we are inclined to grant the stay of the demand for the previous years. The circumstances are these :-
(A) A Division Bench of this Court in a similar matter Schneider Electric India Pvt. Ltd. v. Commissioner of C. Ex., Nashik reported in (Bom.), granted a stay even against pre-deposit. The Tribunal had directed a pre-deposit. The Division Bench held that the issue as to whether the 1977 Rules are applicable to the case of the appellant itself, is in doubt. The Division Bench, accordingly, quashed and set aside the order and directed the CESTAT to dispose of the appeal filed by the appellant therein on merits without insisting on pre-deposit. The Division Bench, therefore, prima facie at least held that the law as it stands is in favour of the appellant.
(B) There is another important aspect. Prima facie, at least, even before the Tribunal the position of law appears to be in favour of the appellant. Unfortunately, the third member did not consider the judgment of the Tribunal. In a group of matters, the first of which was the case of M/s. Acme Ceramics v. 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 Court was dealing with a dispute wherein in the absence of rules having been prescribed under the Central Sales Tax for determining the manner in which the sale price of transfer of goods under Works Contract was to be calculated, would the levy of works Contract be sustainable in the State of Uttar Pradesh by computing the value of taxable turnover in accordance with the rules framed under Uttar Pradesh Trade Tax Act, 1948. The Apex Court while dealing with the issue noted that Central Sales Tax Act, 1956 provides that the authority who is empowered to assess, re-assess, collect, and enforce payment of any tax under the Central Sales Tax Act and for this purpose, they may exercise all or any of the powers they have under the General Sales Tax law of the State; Section 3(3) of the Central Sales Tax provides that State Government may make rules not inconsistent with the provisions of the Act and rules made thereunder. The Uttar Pradesh State Government has framed Central Sales Tax (U.P. Rules), 1957, in exercise of the powers conferred under the CST Act, 1956 and Rule 9 of the said Rules provided that the provisions of Uttar Pradesh Sales Tax Act, 1948 and U. P. Sales Tax Act, 1948 and U. P. Sales Tax Rules, 1948 as amended from time to time or the rules made thereunder would apply to the dealer liable for assessment under Central Sales Tax Act and U.P. Sales Tax Rules, 1948, Rule 44 (B) prescribed the manner of determining the turnover of the goods involved in execution of Works 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/re-determination of RSP has not been enacted or prescribed in any other enactment and as no provisions have been incorporated by reference under Central enactment. In our view, there being no contrary judgment to the views expressed by the 3 decisions of the co-ordinate benches of the Tribunal on this issue, even assuming that there was mis-declaration of RSP, period prior to 1-3-2008 the RSP cannot be re-determined by the Revenue in any manner.”
7. We obviously refer to the order not because it has any precedent value in this court but is a indication of what the impugned order of the third member may well have been, had the judgment been considered by the learned third member. The judgment had been placed before the third party member but was not considered by him.
8. As we mentioned earlier we would normally have set aside the impugned order and remanded the matter to the learned third member to pass a fresh order after considering all the orders of the Tribunal including the order in the case of Acme. However, as the issue of maintainability of this appeal has been raised we refrain from doing so.
9. In the circumstances, there shall be ad interim 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.
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