ORDER
V.K. Agrawal
1. M/s Shree Cement Ltd., have filed the present appeal being aggrieved with the Order-In-Appeal passed by the Commissioner Central Excise (Appeals), Jaipur, confirming the demand of Rs. 8,89,656/- and upholding the penalty of Rs. 50,000/-
2. Shri G. Shiv Das, ld. Advocate, submitted that the Appellants manufacturer cement and clinker; that they use explosive in their captive mines for quarrying the lime stone which is basic input for the manufacture of the cement; that besides using substantial part of lime stone in their factory, some part of it is transferred to their another unit Raj Cement for use therein in the manufacture of cement; that the Appellants take Modvat Credit of the duty paid of the inputs including the duty paid on explosives; that the Assistant Commissioner, under Adjudication Order No. 32/99 dt. 19-3-99, confirmed the demand and imposed the penalty holding that they were liable to pay an amount of 8% for the clearance of exempted/non dutiable goods i.e. lime stone. The ld. Advocate, further, submitted that for invoking the provisions of Rule 57CC of the Central Excise Rules it is required that the manufacaturer should be engaged in the manufacture of dutiable final product and an exempted final product; that one of the product should be exempt from the whole of the duty of excise leviable thereon and there should be a price for exempted final product charged for sale of such goods at the time of clearances from the factory; that all these requirements are not satisfied in respect of lime stone as it is now a settled law that crushing of the limestone does not amount to manufacture of excisable commodity. Reliance was placed on the decision in the case of Divisional Deputy Commisioner of Sales Tax Vs. Mineral Industries, 2000 (119) ELT 271 (SC). He also mentioned that lime stone being not an excisable products it is neither exempted from payment of duty nor chargeable to nil rate of duty and according this conditions is alsi not satisfied.. He mentioned that the lime stone is not sold by them as it is sent to another Division of the Appellants only. Finally, he submitted that the amount paid under Rule 57 CC is not excise duty and as such the provisions of Section 11A of the Central Excise Act are not applicable and no other recovery mechanism has been provided to recover the amount; that as held by the High Court of Madras in the case of Eternit Everest Ltd. Vs. U.O.I. 1997 89 (ELT) 28 (Mad), the amount cannot be collected by the Department. He also submitted that as the modvat credit has been reversed before clearance of the goods, it would mean that no modvat credit had been availed of in respect of the inputs used in the manufacture of the final product making the provisions of Rule 57 CC not applicable.
3. Opposing the arguments, Shri Mewa Singh, Ld. SDR, submitted that the submissions made by the ld. Advocate before the Tribunal were not raised before either of the lower authorities; that being totally new pleas the same cannot be raised before the Tribunal for the first time. He also reiterated the findings as contained in the Adjudication Order and in the impugned Order.
4. We have considered the submissions of both the sides. The pleas raised by the ld. Advocate for the appellants are in the nature of legal pleas which can be raised at the Appeal stage before the Appellate Tribunal. However, as these pleas have been raised for the first time, neither the Assistant Commissioner nor the Commissioner (Appeals) had been given any chance to examine the same and to give their findings on these pleas. In view of this position, we feel that the matter should go back to the Original Adjudicating Authority for considering the various pleas raised now by the ld. Advocate on behalf of the Appellants. Accordingly, we remand the matter to the Adjudicating Authority with the direction to pass adjudication Order afresh after considering the pleas raised by the Appellants and after affording an opportunity of hearing to them. The Appeal is thus allowed by way of remand.