ORDER
S.L. Peeran, Member (J)
1. In both these appeals, a common question of law and facts are involved and hence, they are taken up together for disposal as per law. The issue involved in these appeals is as to whether the appellants are required to pay 8% amount on the price of the exempted goods i.e. Sulphuric Acid cleared by them under Rule 57CC of the erstwhile Central Excise Rules, 1944, as the assessee had used the input viz. Vanadium Pentaoxide in respect of both dutiable products – Sulphuric Acid cleared on payment of duty as well as exempted products – Sulphuric Acid used captively in the manufacture of fertilizers and also cleared at NIL rate of duty to Fertilizer Corporation of India, Ramagundam. The matter had been remanded by the Tribunal to examine the issue de novo. The Commissioner has re-affirmed the earlier order passed by the previous Commissioner and this is the subject matter of attack by the learned Advocate inasmuch as that the Commissioner ought not to have repeated the order but should have applied his mind independently and decided the issue in the light of several judgments holding that the amounts cannot be confirmed under Rule 57CC in the absence of recovery machinery as held in the following cases :
(i) Indian Railways (Wheel & Axle Plant) v. CCE, Bangalore -- 2004 (116) ECR 733 (Tri. -Bang.) (ii) Wheel & Axle Plant v. CCE, Bangalore-II -- (iii) Pushpaman Forgings v. CCE, Mumbai-VII - 2002 (149) E.L.T. 490 (Tri. -Mumbai) Affirmed by the Apex Court as reported in 2003 (153) E.L.T. A89 (S.C.). 2. The learned DR reiterated the departmental view.
3. On a careful consideration, we agree with the learned Counsel that the Commissioner is duty bound to apply his mind independently and not to repeat the order of the previous Commissioner and mention about the same in his impugned order as has been done in this case. There was no recovery machinery during the period in question from 1-8-1996 to 15-6-1999. In the citations referred to, the Tribunal has clearly held that absence of any machinery for recovery. This finding of the Tribunal has also been confirmed by the Apex Court. In that view of the matter, the confirmation of demand by the Commissioner is without basis. Hence, following respectfully the judgments, the impugned orders are set aside and the appeals are allowed with consequential relief, if any.
(Operative portion of this Order was pronounced in open Court on conclusion of hearing)