ORDER
P.S. Bajaj
1. This appeal has been filed by the Revenue against the impugned order of the Commissioner (Appeals) dated 23.2.2000 vide which he had reversed the order in original of the Assistant Commissioner dated 5.2.98 disallowing modvat credit of Rs. 1494370.91 on the goods in question as “capital goods” to the respondents.
2. None has come present on behalf of the respondents. On the last date of hearing i.e. 23.5.2001 the matter was adjourned on the request of the learned counsel, but today none has come present. There is also no request for adjournment from them. Therefore, we proceed to decide the matter after hearing the learned SDR.
3. It has been submitted by both the sides that the issue as to whether the goods falls within the ambit of definition of “capital goods” in terms of Rule the Central Excise Rules read with Explanation I appended thereto, deserves to be re-examined in the light of the Larger Bench decision of the Tribunal in the case of CCE Indore Vs. Surya Roshini, 2001(42) RLT 817(LB). We have also gone through the impugned order and the record and in our view the submission of the learned SDR deserves to be accepted. The decision of the Larger Bench in the above cited case was not available to the Commissioner (Appeals) when he passed the impugned order. Therefore, the impugned order of the Commissioner(Appeals) is set aside and the matter is sent back to the adjudicating authority for fresh decision in the light of the observations made in the above referred case of the Larger Bench of the Tribunal. He will decide the matter afresh after affording opportunity of hearing to both the sides.
4. Accordingly, the appeal of the Revenue stands allowed by way of remand.
Dictated and pronounced in the open Court.