ORDER
Shri S.L. Peeran
1.
This is a Revenue appeal against Order-in-Original No.5/95 dated 26.5.95 by which the Commissioner has reduced the demands in the show cause notice from Rs. 32,02,479/- to Rs. 23,47,689.05 covering the period 1.3.88 to 19.3.90 on the ground that earlier to this period, the item was not covered under the Tariff heading.
2. Revenue is aggrieved with this order on the ground that the item is goods and they were covered even earlier to that period and the Commissioner ought to have confirmed the duty even before 1.3.88 in terms of the allegations made in the show cause notice.
3. We note that notice of today’s hearing was issued to Harji Engineering Works Ltd. as well as to Advocate Shri J.S. Agarwal, on record. However, they have not responded and have not appeared for the hearing.
4. Ld. SDR submits that the aspect pertaining to the excisability of steel structurals was considered by the Tribunal in the case of Elecon Engineering which was challenged by the Revenue before the Apex Court. A Larger Bench of 5-Judges was constituted by the Apex Court and the Apex Court have taken a view that the item is covered under the Tariff heading and the matter is required to be re-adjudicated and on that plea remanded all the matters for de novo consideration as in the case of CCE Jaipur Vs. Mans Structurals Ltd. [2001 (44) RLT 113]. He submits that the view taken by the Commissioner that the item for previous period is not excisable is not a correct view and he ought to have confirmed the demands in terms of the grounds made out in the show cause notice. He seeks for remand in terms of the Apex Court judgment.
5. We have considered the pleas and examined the Larger Bench judgment of 5 Member of the Apex Court rendered in the case of CCE Jaipur Vs. Mans Structurals Ltd. (supra). The Apex Court has clearly laid down that the Tribunal failed to consider that the structurals are new and identifiable goods produced as a result of manufacture / processes and are marketable. The Apex Court remanded the matters for de novo consideration.
6. We are of the considered opinion that the matter requires to be adjudicated by the original authority in terms of the facts and evidences. The assessee is not present before us. As the Revenue has also not produced the basic evidence which is required for consideration, therefore we are of the considered opinion that the matter has to go back to the original authority to re-adjudicate in respect of the portion of demand which has been dropped by the Commissioner. Therefore, the impugned order, to that extent, is set aside and remanded to the original authority for de novo consideration in the light of the noted Apex Court judgment.
(Pronounced & dictated in open Court)