ORDER
G.R. Sharma, Member (T)
1. Shri Jay Savla, ld. Counsel appearing for the applicant submits that the applicant had filed the stay petition and that in the stay petition they had submitted that the Hon’ble Bombay High Court had dispensed with pre-deposit of duty inasmuch as their prayers in the writ petition against Cols. A&B have been granted and in those prayers they had requested for dispensing with the execution of bank guarantee to the extent of 50% of the demand of duty. He submits that in this view of the matter the case may be heard without insisting on pre-deposit.
2. Ld. Counsel submits that similar issue came up before the Tribunal in the case of Phoenix Mills and the Tribunal under its Final Order No. 115/99-C, dated 12-2-1999 [1999 (113) E.L.T. 1018 (Tribunal)] remanded the matter observing inter alia :
“As this is a matter of fact and in the interest of justice we are of the view that the matter should go back to the adjudicating authority for ascertaining the fact whether the printing paste was prepared within duty paid formulated for standardized or prepared dyes. The appellants have to substantiate their claim by adducing evidence before the adjudicating authority within one month of receipt of this order. As the appellants have contended that they did not have an opportunity of representing against the classification of impugned product under Sub-heading 3204.29, the adjudicating authority will afford an opportunity of hearing to them for submitting their submissions on the classification aspect also. If the product is held to be excisable and chargeable to duty, the appellants will be eligible to avail of the Modvat credit of duty paid on inputs irrespective of the fact that no declaration under Rule 57G of the Central Excise Rules was filed and other procedure was not followed subject to the production of duty paying documents by the appellants to the satisfaction of the adjudicating authority. We, therefore, allow the appeal by remand”.
3. Ld. Counsel submitted that in their case an additional requirement may be added about marketability of the goods. He submits that printing paste, the product in dispute, is not marketed by them and since it was not marketed in terms of the various rulings of the Apex Court, the product is not liable to duty. He, therefore, prays that on identical terms, their case may also be referred back to the adjudicating authority.
4. Shri Sumit K. Das, ld. DR appearing for the respondent Commissioner submits that the facts in two cases are almost similar and therefore, he has no objection if the case is remanded to the adjudicating authority for rede-termining the contentions as made out in the observations of this Tribunal in the case of Phoenix Mills.
5. We have heard the rival submissions. We have also noted the directions of the Hon’ble Bombay High Court. We agree that similar issue came up before the Tribunal in the case of Phoenix Mills and the Tribunal after examining the impugned order observed as reproduced above. Having regard to the fact that pre-deposit has been dispensed with by the Hon’ble Bombay High Court and having regard to the fact also that under similar circumstances this Tribunal in the case of Phoenix Mills referred the case back for de novo adjudication to the adjudicating authority, we adopt the same, and direct the adjudicating authority as directed by this Tribunal in the case of Phoenix Mills. In addition, we also direct the adjudicating authority to examine the contention of the applicant that printing paste is not marketable and therefore, is not goods for purpose of levy of Central Excise Duty.
6. In the circumstances, the stay petition is disposed of in the above terms and the appeal is allowed by way of remand.