ORDER
V.K. Agrawal, Member (T)
1. This is an appeal filed by the Revenue against the order dated 29.9.93 passed by the Collector (Appeals).
2. We heard Shri Ashok Kumar, Ld. JDR and Shri P.M. Panwar, Ld. Consultant. We find that the respondents, M/s. R.K. Metal Industries manufactured copper circles out of the scrap purchased from the market. The Assistant Collector disallowed the benefit of notification No. 178/88 on the ground that the scrap purchased from the market had not suffered duty and as such the benefit of notification was not available. However, on appeal preferred by them, the Collector (Appeals) under Order-in-Appeal No. 223-CE/Appl/JPR/92 dated 21.2.92 allowed the benefit of notification holding that the burden of proving that the inputs were non-duty paid, was squarely on the department and the department had not proved the inputs to be non-duty paid. The Assistant Collector, following the said Order-in-Appeal dropped the demand against the respondents vide Orders No. 72/92 and 74/92. The Collector went in appeal against the dropping of the demand of Central Excise duty and the Collector (Appeals) in the impugned order dated 29.9.93, rejected the department’s appeal holding that the issue involved has specifically been decided by him in’ order-in-appeal dated 21.2.92 and if such an order was not acceptable, proper course was to file an appeal before the appellate Tribunal.
3. Ld. Consultant, appearing on behalf of the respondents, made a statement that no appeal had been filed by the department against the earlier order-in-appeal dated 21.2.92. The department has not rebutted this contention of the Ld. consultant.
4. We agree with the Ld. consultant that as the appeal has not been filed against the Order-in-Appeal dated 21.2.92 and the Assistant Collector has not confirmed the demand following the said order, there is no infirmity in the impugned order passed by the Collector (Appeals). Accordingly, we reject the appeal filed by the Revenue. (Dictated in Court)