ORDER
Harish Chander, President
1. M/s. Bajaj Auto Ltd., Pune has filed an appeal being aggrieved from the Order passed by the Collector of Central Excise (Appeals), Bombay. Shri L.B. Attar, learned Advocate has appeared on behalf of the appellant. He reiterated the contentions made in the appeal memo. Learned Advocate fairly pleaded that the issue has been decided by the Tribunal vide Order No. 36/1989-A, dated 9th August, 1989. Learned Advocate pleaded that after the issue had been decided by the Tribunal in its earlier Order, the appellants being not satisfied with the order passed by the Tribunal had filed Civil Appeal before Supreme Court and the Supreme Court had confirmed the findings of the Tribunal vide Civil Appeal No. 1290 of 1990, dated 23-11-1992. Learned Advocate pleaded that the Order passed by the Tribunal gets merged into the Order passed by the Hon’ble Supreme Court and for all purposes, the Tribunal’s Order now has to be deemed as the order passed by the Hon’ble Supreme Court with the same observation. Learned Advocate further pleaded in the Order passed by the Tribunal the 5 Show Cause Notices were in dispute. He drew the attention of the Bench to page Nos. 67 to 71 of the paper book and in specific, he referred to page No. 70 and 71 of the paper book. Page No. 70 relates to 5 Show Cause Notices and the total amount of duty demanded is Rs. 44,08,368.80 and the total demand in respect of 7 Show Cause Notices is Rs. 1,01,99,567.57 totalling to Rs. 1,46,07,936.37. Shri Attar further pleaded that in response to the directions of the Tribunal vide Stay Order No. 46/90-WRB, dated 6-9-1990, the appellant had deposited a sum of Rs. 75 lakhs. He pleaded that the duty has to be worked out on the basis of the actual clearances made by the appellant. He drew the attention of the Bench to para No. 11 of the order passed by the Tribunal. He pleaded that the duty should be worked out on the basis of the order passed by the Bench which has been upheld by the Hon’ble Supreme Court. Shri Prabhat Kumar, learned SDR, who has appeared on behalf of the respondent stated that the matter may be remanded to the adjudicating authority having jurisdiction and should be decided in the light of the decision of the Tribunal vide Order No. 326/1989-A, dated 9-8-1989, which had been upheld by the Hon’ble Supreme Court in Civil Appeal No. 1290 of 1990, dated 23-11-1992.
2. We have heard both sides and have gone through the facts and circumstances of the case. The issue has already been decided by the Tribunal vide Order No. 36/1989-A, dated 9-8-1989. Para Nos. 9,10 and 11 from the said Order of the Tribunal are re-produced below :-
“9. We would also like to observe that the scooter manufactured by the appellants have got separate rider and pillion seat and there is a gap. Engine of the scooter is on the left side and is covered with the covering and other covering which is oval and similar is the position of the right side of the scooter which is hollow. The passenger on the rear seat of the scooter cannot sit comfortably if he places his feet on the flooring of the scooter body. In any case for comfortable sitting on the pillion seat he has to sit, and has to keep his both legs and feet on the right side and necessary resting place to the feet has to be given, and for giving the necessary resting place to the feet, foot rest is very essential.
10. We have come to this conclusion on the basis of common trade parlance and without taking into consideration the Bombay Motor Vehicle Rules or the Ministry of Industry’s letter dated 27th November, 1969.
11. In view of the above discussion we are of the view that foot rest is an essential part of the scooter and as such the value of the same was rightly includible in computing the assessable value of the scooter. During the course of arguments the learned Advocate had also argued that the value of the foot rest has been included on the basis of the scooters manufactured and cleared by the appellants not on the basis of actual foot rest which were 60% of the number of scooters value. We find that there is force in the argument of the learned Senior Advocate. Accordingly, we are of the view that value of the foot rest should be included only on the basis of the actual clearances made by them. Especially when there is no evidence on record to the effect that the appellants had supplied the same to the dealer after the sale of the scooter to him. Accordingly, the revenue authorities are directed to recalculate the duty on the foot rest on the basis of the actual clearances of the foot rest, except for this modification in the order the appeal is otherwise rejected.”
The Order passed by the Tribunal was challenged before the Hon’ble Supreme Court by the appellants. The order passed by the Hon’ble Supreme Court is re-produced below :-
“The civil appeal is dismissed.”
A perusal of the Hon’ble Supreme Court’s order shows that the only observation is ‘civil appeal is dismissed’. Thus, the order passed by the Tribunal gets merged into the order passed by the Hon’ble Supreme Court as the appeal was disposed of after hearing the parties on merits. In the matter before us we are told that the dispute is in respect of the 7 Show Cause Notices but for calculation of the duty relating to earlier 5 Show Cause Notices has also been calculated to Rs. 44,08,368.80. We accept the prayer of the learned DR for the remand of the matter to the jurisdictional adjudicating authority to compute the duty payable in accordance with the decision of the Tribunal which has been upheld by the Hon’ble Supreme Court. Accordingly, we set aside the impugned Order and remand the matter to the jurisdictional adjudicating authority. Jurisdictional adjudicating authority shall calculate the duty in accordance with law. We further order that he will observe principles of natural justice and grant opportunity of personal hearing. Since the issue is very old, we shall appreciate if the re-adjudication is done within 3 months from the date of the receipt of the order. The appeal is allowed by way of remand.