ORDER
Archana Wadhwa, Member (J)
1. After dispensing with the condition of pre-deposit of duty and penalty, we take up the appeal itself, inasmuch as the issue lies in a narrow compasss.
2. The matter was remanded by the Tribunal vide its Order No. A-806/KOL/2002 dated 19.7.2002 with directions to the Commissioner to follow the earlier decision of the Tribunal in the case of S.G. Multicast v. Commissioner of Central Excise, 2002 (91) ECC 743 (T) : 2002 (50) RLT 581, and to decide the appellants’ duty-liability in accordance with the provisions of Section 3A(4) on the basis of their claim of actual production.
3. Both sides agree that no appeal was filed against the said decision of the Tribunal and as such the same had attained finality. As such, the limited scope of the Remand Proceedings before the Commissioner was to adjudge the appellants’ duty-liability on the basis of the actual production.
4. We find that the Commissioner while passing the impugned Order has discussed a number of issues and in para 39, has observed — “……..Therefore, the observations made in the above case by the Hon’ble Tribunal is contrary to the provisions of Section 3A.” The above observation made by the Commissioner indicates as if the Commissioner was deciding the appeal against the Tribunal’s Order. It was not open to the Commissioner to make such an observation as regards the correctness or otherwise, of the Order passed by the Tribunal and he was under a legal duty to decide the matter in accordance with the directions as contained in the Tribunal’s Order. It may be mentioned here that if the Revenue was aggrieved with the above Order of Remand by the Tribunal deciding the legal issue in favour of the assessee, but sending it back only for quantification purposes, it was at liberty to challenge the said Order before the higher appellate forum. Having not done that the Revenue is deemed to have accepted the Order. As such, it was not open for the Commissioner to comment upon the correctness or otherwise, of the said Order. The limited scope of the Remand Proceedings was to quantify the duty-demand against the appellants on the basis of the actual production.
5. We find that the Commissioner has also referred to the Tribunal’s decision in the case of Commissioner of Central Excise, Patna v. Ganesh Foundry and Castings Ltd., 2001(137) ELT 451(Trib. Kol), as also on the Larger Bench decision in the case of Mohinder Steels Ltd. v. Commissioner of Central Excise, Chandigarh, 2002 (145) ELT 290 (Trib. LB). We find that the ratio of the said decisions is not at all applicable to the facts of the instant case and the Commissioner was bound by the Remand Order of the Tribunal, which had attained finality on the ground of not being appealed against.
6. As regards the merits of the case, we have seen that the appellant company has produced the RG-I Register before the Commissioner who has not accepted the same. There is no reason or ground given by the Commissioner in his Adjudication Order for not accepting the RG-I figures. The same do not stand rebutted by the Revenue on the basis of any evidence. On the other hand, we find that the appellant has given reasons for the lower production such as erratic power-supply corroborated by the statement of interruption of power, power-consumption fluctuation of voltage, bad quality of raw material and generation of misrolls etc. The above factors forwarded by the appellant company, have not been examined by the Commissioner in proper perspective. The Revenue has also not produced any evidence to counter the above reasons given by the appellants. In these circumstances, we are once again constrained to set aside the impugned Order and remand the matter to the Commissioner with direction to quantify the appellants’ duty-liability on the basis of the actual production.
7. We make it clear that both sides are at liberty to substantiate or rebut in regard to claim of actual production. The appeal is thus allowed by way of remand. Stay Petition also gets disposed of.