ORDER
Jyoti Balasundaram, Member (J)
1. For reasons recorded below, we waive the pre-deposit of duty of Rs. 4,06,32,644/- confirmed against the appellant company and penalty of equal amount imposed along with penalties of Rs. 50 lakhs and 25 lakhs imposed on its Managing Director and Shri Dinesh G. Patil, Director (Technical) respectively and proceed to hear and decide the appeals themselves with the consent of both sides. The issue in dispute relates to classification of the impugned intermediate goods viz. Fractional Distillates under CET sub-heading 2710.13, although it has not been established that the same is suitable for use as fuel. The details of comparable goods on the basis of which the goods in dispute have been classified, has also not been furnished to the appellants.
2. On hearing both sides, we find that in an identical situation in the case of M/s. Avani Petrochem Ltd., the Tribunal by its order No. C.I/2083 to 2086/WZB/2003 dated 15/9/03 has remanded the case for readjudication by the Adjudicating Commissioner leaving the issues open for consideration at the time of readjudication. The relevant, paragraph from the Tribunal’s order is re-produced below:-
“After hearing both sides and perusal of case records, we find that there is no finding by the Adjudicating Commissioner that the impugned intermediate product satisfies the criterion of suitability for use as fuel to merit classification under sub-heading 2710.13. It has earlier been held by the Tribunal in the case of Silverchem Industries Pvt. Ltd. v. C.C.E. Mumbai – 2003 (155) E.L.T. 204 (Tri-Mumbai) that a product to be classifiable as special boiling point spirit under sub-heading No. 2719.13 has to satisfy both the criteria for motor spirit in regard to flash point as well as suitability for use as fuel, and that satisfaction of flash point criterion alone is not sufficient. Secondly, we also find that the details of comparable products have not been made available to the appellants. Keeping in view the foregoing, we are of the opinion that the matter requires fresh consideration after furnishing details of the comparable goods to the appellants apart from testing the impugned products for its suitability for classification under sub-heading No. 2710.13. As such, we set aside the impugned order and remand the case for re-adjudication by the Adjudicating Commissioner, who will grant a reasonable opportunity of hearing to the appellants. We make it clear all issues are left oprn to be considered by the Adjudicating Commissioner at the time of re-adjudication”.
3. Following the ratio of the above order, we set aside the present impugned order and remand the case for fresh decision to the jurisdictional Commissioner after extending a reasonable opportunity of hearing to the appellants. Liberty is given to the appellants to raise all issues including the plea of limitation before the Adjudicating authority.
4. The appeals are thus allowed by remand.
(Dictated in Court)