ORDER
K.K. Usha, J. (President)
1. This appeal at the instance of the assessee is against the order passed by the Commissioner (Appeals), dated 9-4-2003. The issue raised herein relates to the duty liability of the assessee on various bought out parts, which were cleared directly to the site of the customers, it is contended on behalf of the appellant that this issue is decided in its favour by the decisions of this Tribunal in Cimmco Birla Ltd. v. CCE, Jaipur reported in 2003 (156) E.L.T. 1019 (Tribunal) = 2003 (57) RLT 754 (CEGAT-Del.) and Fujitsu Indi Telecom Ltd. v. Commissioner of Central Excise, Chandigarh reported in 2003 (151) E.L.T. 354 (Tri.-Del.). It is not disputed before us that the duty is demanded in respect of bought out items, which were directly supplied by the assessee to the site of its customer M/s. Godrej Soaps Ltd. If that be so, the appellant is fully justified in relying on the above-mentioned decisions to contend that the duty liability is not sustainable.
2. The contention raised by the Revenue is that the assessee having not challenged the order, dated 22-3-2000 passed by the Commissioner (Appeals), remanding the matter for quantification of the duty liability, it is not open to the appellant to put forward the above-mentioned contention in the present appeal. It is true that in the order, dated 22-3-2000 the Commissioner (Appeals) had held that the value of bought out item was includible for the value of the manufactured goods. It is also true that the above order was not challenged by the assessee before this Tribunal. But the contention raised by the appellant before us is that since the entire matter is open before a higher authority, namely, Tribunal it is open t6 the assessee to take up the contention regarding the dutiability of the bought out items. In support of the above contention they placed reliance on the decision of the Supreme Court in Collector of Central Excise, Indore v. Hindustan Lever Ltd. [2000 (120) E.L.T. 3 (S.C.) and also on a decision of this Tribunal in Kothari and Company v. Collector of Customs [1989 (40) E.L.T. 155 (Tri.).]
3. We find merit in the above contention raised by the appellant. In M/s. Hindustan Lever Ltd., Supreme Court following its earlier decision in Jasraj Inder Singh v. Hemraj Multanchand (1977) 2 SCC (155) took the view that “a finding in a remand order cannot bind a higher Court when it hears the matter in appeal.” In the case of Uma Laminated Products Pvt. Ltd. v. CCE, [1989 (40) E.L.T. 152 (T)], this Tribunal followed the decision of the Supreme Court in Jasraj Inder Singh v. Hemraj Multanchand and held as follows :-
“9. Thus the Supreme Court held that when, in the course of the same proceedings, the matter comes up before an authority superior to the appellate authority which passed the order of remand, the findings contained in the order of the remand would not be binding on the said superior authority which is entitled to go into the entire matter afresh without being shackled by the findings of the lower appellate authority as recorded in the order of remand. It, therefore, follows that in the present instance this Tribunal, in considering the entire issue, is entitled to go into the whole matter afresh and would not be bound by the opinion of the Appellate Collector as recorded in the remand order. We have already seen that this Tribunal has held, in the case of these very appellants themselves, against , them on the question of classification and liablity for payment of duty. The said decision is binding on us, unless set aside by the Supreme Court.”
4. In the light of the ratio of the binding authorities, we are inclined to accept the contention raised by the appellant that it is open to the appellant to contend before the Tribunal and raise the contention regarding dutiability of bought out item in this appeal before this Tribunal even though they have not challenged the order passed by the Commissioner (Appeals), dated 22-3-2000 remanding the matter. In the light of the above, we set aside the order impugned and allow the appeal.