ORDER
P.G. Chacko, Member (J)
1. Four of these appeals are by the assessee and the fifth is by the department. Counsel for the assessee has prayed for adjournment. Learned SDR submits that the assessees’ appeals are against orders passed by learned Commissioner (Appeals) dismissing their appeals (filed against adverse orders of the original authority) on the sole ground of noncompliance with Section 35F of the Central Excise Act. It is submitted that these cases will have to be ultimately remanded to the lower appellate authority. In respect of the Revenue’s appeal (E/973/2005), it is submitted by learned SDR that the same is against dismissal of an appeal of the department by the lower appellate authority on the ground of merger. The appellant was not put to notice of the proposal to dismiss their appeal on this ground. We find that these submissions of learned SDR are factually correct and, therefore, for the ends of justice, all the five appeals must be finally disposed of at this stage. Accordingly, after rejecting the request for adjournment, we proceed to deal with the matter.
2. Appeal No. E/1114/2005 is the main appeal among the four filed by the party and the same is within time. Appeal Nos. 1115-1117/2005 are supplementary to the main appeal and, therefore, the delay involved in the filing of these appeals is condoned. The requirement of predeposit is waived in all the five appeals of the party and the appeals are taken up for disposal.
3. The assessees’ appeals are against compounded levy of duty under Section 3A of the Central Excise Act. This provision of law was omitted from the statute book with effect from 11.05.2001 and the corresponding Rule (Rule 96 ZP of the Central Excise Rules, 1944) had been omitted as early as on 01.03.2001. The above levy of duty is being contested on this principal ground. Having regard to this nature of the dispute, we are of the view that the assessee need not be directed to make any predeposit for the purpose of disposal of their appeals by the lower appellate authority. Accordingly, we set aside the impugned orders and direct learned Commissioner (Appeals) to deal with the assessee’s appeals on merits without insisting on predeposit. Appeal No. E/1114-1117/2005 stand allowed by way of remand.
4. The grievance of the department in their Appeal No. E/973/2005 is that they had no notice of rejection of their case by the lower appellate authority on the ground of merger and that their case on merits was not duly examined. It is submitted by learned SDR that, though the original authority had confirmed the entire demand of duty as raised in the show-cause notice, the operative part of its order was in the nature of confirming a lesser amount of duty. A similar defect was also there in respect of penalty. Though these defects were pointed out to learned Commissioner (Appeals), through an appeal of the department, the grievance was not addressed. On the other hand, the department’s appeal was dismissed on the ground of merger. It is submitted that ‘merger’ was found between the impugned order (Order-in-Original No. 3/2004 passed by the original authority) and Order-in-Appeal No. 79-82/2004 passed by the Commissioner (Appeals) and accordingly Order-in-Appeal No. 10/2005 was passed by learned Commissioner (Appeals), It is submitted that, in the department’s appeal against Order-in-Original No. 3/2004, no substantive issue was raised to attract the principle of merger. The grievance was only quantitative in nature vis-a-vis the demand of duty confirmed and the amount of penalty imposed. It is pointed out that the department had no occasion to argue before learned Commissioner (Appeals) against applicability of the principle of merger. We think, the facts and circumstances placed before us by learned SDR are enough for us to send the case back to the lower appellate authority. Accordingly, the appellate Commissioner’s order impugned in the department’s appeal is set aside and he is directed to pass fresh order after addressing the above grievance of the appellant and hearing the appellant’s and assessee’s representatives. Learned SDR has cited before us the Supreme Court’s judgment in Mauria Udyog Ltd. v. Commissioner of Central Excise, Delhi-II in support of her arguments against the applicability of the principle of merger. The lower appellate authority shall take note of this case law also. In the result, the Revenue’s appeal also stands allowed by way of remand.
(Dictated and pronounced in open court)