TaxTMI 
TaxTMI 
2009 (6) TMI 507
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....en stated therein that the signatory Shri Ashok Kumar Sharma is the General Manager (Accounts) of the appellant and he was duly authorized to sign, verify and file the appeal memo as well as Stay application on behalf of the appellant in terms of resolution passed at the meeting of the Board of Directors on 27th March, 2002. A copy of the resolution duly certified to be true copy was annexed to the application stating the fact that he has been permitted. But we find that although the facts have been verified by an affidavit, the resolution in question did not form part of the affidavit even though that was mentioned in paragraph 2 of the affidavit. 3. The ld. Sr. Counsel Shri Bagaria submits that the affidavit proves the veracity and corroborated by page 5 of the application filed today. This self explains that Shri Ashok Kumar Sharma was the signatory of the appeal memorandum and stay application. He has verified these two documents for which the appellant agrees to be governed by such verification. This is reflected in para 5 of the application verified by an affidavit and filed today. Therefore, he prays that the appeal is maintainable, so also, the stay application deserves co....
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.... term should get the same meaning under Excise Law. The Ld. Sr. Counsel is totally in disagreement with such proposition submitting that when there is no definition of any term called "principal officer" under the Central Excised Act, 1944 nothing can be inferred against appellant. He also submitted that so far as the appellant's argument that right of appeal is conditional that has been dealt with, in the decision of the Apex Court in relation to the condition of pre-deposit only. Such mandatory provision appears under Section 35F of Central Excise Act, 1944. The conditional right is to be interpreted in this sense only. Being aware of conditional right, the appellant has come in stay application under section 35F of the Central Excise Act, 1944 for consideration of dispensing of pre-deposit. Right of the appellant may be varied by Tribunal by an order under Section 35F and that shall prevail. Therefore, Revenue has misconceived its proposition following the decision of the Apex Court in the case of Vijay Prakash D. Mehta (cited supra). 8. We heard both sides extensively. In order to resolve the dispute of maintainability of appeal, we reproduce Rule 8 of CESTAT (Procedure) Rules....
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....respondent" and "principal officer". When we look into the manner how this sub-rule has been designed, this throws light that the word "or" is used at the end of the words appellant/ applicant/ respondent to mean that 4 (four) categories of persons/concerns can authenticate a memorandum of appeal or application or cross objection. The category of persons or concerns they can attest and authenticate the appeal and other documents are "the appellant" himself or "the applicant" himself or "the respondent" himself or "the principal officer" duly authorised to sign any of the documents. The word appellant has been used in the contest of an appeal, the word applicant has been used in the context of an application and the word respondent has been used in respect of cross-objection. While the appellant, applicant and respondent can sign themselves, they are also permitted by law to get these 3 documents signed by their principal officer duly authorised to sign such documents. Such an interpretation shows that the rule should not be read in narrower sense. We are guided by the Apex Court decision in the case of Collector of Central Excise v. Berger Paints India Ltd. reported in 1990 (47) E.....
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....on. While doing so, also we notice that the term "principal officer" has not been defined under Central Excise Act, 1944 or Central Excise Rules, 1944. In the absence of any meaning to this term under this law the "principal officer" duly authorised by the company under a resolution shall be a "principal officer" of that company for the purpose of Rule 8(3) of CESTAT (Procedure) Rules, 1982. Once a person is designated as principal officer and duly authorised to sign the documents stated in Rule 8(3), there shall be no denial of entertaining the appeal or the stay application as the case may be. When we held so, we proceed to consider the Stay application of the appellant holding that the appeal is maintainable. 13. The matter in dispute before us is that 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. 14. Ld. Sr. Counsel Shri Bagaria appearing on behalf of the appellant challenges the order in original passed on 18-12-2008 on 3 counts. The first such challenge ....
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....r assessment, as may appear reasonable." Reading rule 4, ld. Counsel submits that this rule prescribes the normal circumstances of removal subject to adjustment on account of different factors. Therefore, when the department noticed that the appellant had made partial sale of its goods and partial captive consumption, the appellant should fall under Rule 4. This also applies for the reason that there was no total sale of the goods manufactured to be covered by Rule 8. Therefore, a situation in between, even if presumed to go to Rule 11, it should revert back to the basic principles of Rule 4 only. The legislative mandate of rule 8 being that the whole of the goods should have been captively used. There should be a factual finding to deny application of Rule 4 itself. To say so, he draws our attention to the Larger Bench decision in the case of ISPAT Industries Ltd. v. Commissioner of Central Excise, Raigad reported in 2007 (209) E.L.T. 185 (Tri.-LB). He most particularly relies on para 5 of Larger Bench Decision. For convenience of reading he requires that the said paragraph may be reproduced which reads as under:- 5. We have considered the rival submissions and are of the view t....
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....ther proceeded to rely on the decision of the Delhi Bench reported in the case of CCE, Chandigarh v. Pfizer Ltd. reported in 2008 (231) E.L.T. 642 (Tri.-Del.). Again he relies on the decision of Kolkata Bench in the case of Howrah Gases Ltd. v. CCE, Bolpur reported in 2008 (230) E.L.T. 512 (Tri.-Kolkata). He further places reliance on another decision of the Kolkata Bench in the case of Balajee Electro Steel Ltd. v. CCE, Ranchi reported in 2007 (219) E.L.T. 563 (Tri.-Kolkata). Citing these decisions, he submits that the Larger Bench decision appears to have considered principles of all the decisions of other Benches even that decision was made on 2-2-07. The decision of Delhi Bench was made on 22-7-08. The other two decisions of Calcutta Bench were made on 25-6-07 and 27-2-08 respectively. This chronologically suggests that Tribunal has consistently viewed that Rule 8 will apply only when none of the goods are sold but are used for captive consumption. Further none of these decisions have been stayed by Apex Court or over ruled since any of the parties aggrieved by an order of valuation passed by the Tribunal have remedy before Apex Court and according to electronic library no such....
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....ting the said Auditor's report, the appellant was dealt by the Order-in-Original while there is no doubt that Cost Audit Report was the basis for adjudication. When the original report was considered to be basis of adjudication, any subsequent variation thereto should also be brought to test in the broad day light. But that was not done. Therefore, the appellant pleaded before the authority below that without confrontation of the cost auditor's report issued subsequent to report dated 3-7-06, the appellant should not be dealt deterrently under the rule. This violates the principle of natural justice. But the appellant was paid a deaf Gear with the answer in para 9 of the Order-in-Original. The ld. Commissioner does not rule out that there was no revised audit report. But he states that that was not the basis for adjudication. Therefore, the appellant's grievance is if the very basis of the adjudication was Cost Auditor's revised report and that goes to the root of the matter, the appellant cannot be denied to have access to such report. 19. Ld. Sr. Counsel submits that there was a violation of principles of natural justice. He relies on the following decisions for defence:- (i) D....
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....the Department would only consider the defences and reject the same, if the same are not in accordance with law or are based on mis-construction of the factual aspect or mis-conception of law. When the documents are possessed by Department, which may be beneficial for raising a defence plea, the aggrieved should not be deprived of those documents to meet the end of justice. It may be stated that a defence whether is genuine or misconceived and whether is false or truthful, cannot be tested before the defence is raised. We also notice that the demand is huge and the Appellant may get an opportunity to defend its case, if both parties come together to sort out their own problem of right to copies of documents and duty to provide such documents. Without expressing any opinion on the merits of the case, we feel it proper to send the matter back to learned Adjudicating Authority with a direction that there shall be no recovery of the demand, till fresh adjudication is completed, and the Department should provide copies of the relevant documents sought to be used against the Appellant within two weeks from the date of hearing, i.e. 18-12-2007. The Appellant shall file a reply within four....
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.... down by the Hon'ble High Court of Calcutta in the case of M.S. Naina v. CC, West Bengal Calcutta-1 reported in 2000 (123) E.L.T. 39 (Calcutta). He relies on para 14 of the judgment of the Hon'ble High Court. The said paragraph is reproduced below for convenience of reference:- "14. The petitioner by his application dated the June 20, 1969 had prayed for two things. Firstly he had prayed for disclosure of a forensic test report which was directed in course of the adjudication proceeding when the petitioner had produced the key No. 948328. Importance of possession of this key to prove possession of the seized currency notes had not been disputed by the Collector. As a matter of fact, he had a suspicion that the key produced was not the real key in use but might have been manufactured later on. Therefore to ascertain the genuineness of this key and further to ascertain whether the key was in use or not he himself had directed a forensic test. Having directed such a forensic test it is not open to him to disown the relevancy or the importance of such a test report. Now the petitioner wanted to know the result of the test and therefore he asked for a copy of the report. The Collector ....
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....ity of hearing to the appellant. When the appellant's case was not a case of Rule 8 and that has been categorically observed in the show-cause-notice as well as Order-in-Original, the authorities should have appreciated that the case of appellant does not come under Rule 8 itself. Therefore the appeal itself may be disposed today when the appellant has a prima facie case, balance of convenience is in its favour and irreparable injury shall be caused without granting protection during pendency of appeal. Even if appellant succeeds here, in stay application, that may not serve useful purpose of law if the appellant has to get final relief in its favour on conclusion of the appeal belatedly. Therefore, disposal of the appeal at this stage may not defeat the intended purpose under law since all the 3 aforesaid challenges are fundamental. Further, he submits that the appellant shall not have grievance, even, if the matter goes back to the ld. Adjudicating authority for grant of fair opportunity of hearing and test this case on the touch stone of the law as well as judicial precedents submitted in the Bar today. The appellant's grievance of violation of natural justice calls remand of ma....
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....g to the letters of the law. Therefore, whenever the appellant claim that a removal amounting to sale, the appellant shall submit its goods for determination of assessable value under Section 4(1)(a) of the Central Excise Act, 1944. When a removal is not meant for sale but goods shall fall under the category prescribed by Section 4(1)(b) of the Central Excise Act, 1944 that shall undergo test by valuation Rules. This is the manner how the legislature intended to categorise the manner of goods by the criteria of sale and no sale. Therefore, when there is no sale, the mode of recognition of assessable value is prescribed by the Valuation Rules of 2000. When the tax administration found difficulties with divergent views, revenue intended to remove all the differences by its Circular No. 643/34/02-CX., dated 1-7-02. Ld. JCDR relies on the clarification under Sl. No. 5 of the Circular. The said classification reads as under:- 5. How will valuation be done in cases of captive consumption (i.e. consumed within the same factory) including transfer to a sister unit or another factory of the same company/firm for further use in the manufacture of goods? For captive consumption in one's ow....
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....ue cannot take new stand today bringing an argument on the same Circular. So also when the Larger Bench decision is neither reversed nor stayed by the Apex Court, Revenue's stand fails. 26. To meet the second challenge of the appellant, Revenue submits that when the revised audit report was not the basis and that has also been made clear by the ld. Adjudicating Authority, this appellant has not been aggrieved by that. What that is not the basis need not be confronted. Accordingly, there is no violation of natural justice. Revenue relies on 2 decisions that is Vijeta International v. CCE reported in 2006 (199) E.L.T. 89 (T) and R.K. Mills Board reported in 2001 (135) E.L.T. 1296 (T). Meeting the third challenge as to time bar, Revenue says that wrong valuation adopted by the appellant called for invoking of proviso to Section 11A of the Central Excise Act, 1944. The appellant did not disclose the fact of captive consumption. Therefore the adjudication is within limitation and is also proper. 27. In view of the aforesaid contentions of the Revenue above, ld. JCDR prays for following decisions in the case of Benara Valves Ltd. v. CCE - 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R.....