ORDER
Mr. K.Sreedharan
1. When appellant’s application for Stay came up for orders, we heard Counsel representing the appellants and learned Departmental Representative in detail. On hearing the arguments and on perusal of the records, we feel that the appeal itself has to be disposed of at the earliest for the reasons given herein below.
2. Appellants manufacture M.S. Galvanised pipes. Those pipes were treated as non-excisable goods on the ground that the same have been processed out of duty paid M.S. Pipes manufactured in their own factory. Show cause notices were issued demanding differential duty amounting to rupees more than 10 Lakhs. The claims put forth in the show cause notices were disputed by the assessee. After over-ruling those objections Adjudicating Authority, namely, Dy. Commissioner, Indore passed Adjudication order No.63-65/DC/IND-I/C/97-98 dated 28.10.98. The operative portion of the order is in the following terms:-
(i) “I confirm the demand of Rs.10,94,141/-(Rupees Ten Lacs Ninety Four thousands one hundred forty four only) short paid as excise duty on M.S.Galvanised Pipes as demanded vide Show Cause Notice dated 27.1.97, 30.4.97 & 1.8.97, for recovery under Rule 9 (2) of the Central Excise Rules, 1944 readwith Section 11A of Central Excise Act, 1944.
(ii)I imposed a penalty of Rs.2,00,000/- (Rs.Two Lakhs Only) in respect of clearnaces covered vide show cause notice dated 27.01.97, penalty of Rs.6,00,000/- (Rs.Six Lakhs Only) in respect of clearances covered vide show cause notice dtd.30.4.97 and penalty of Rs.2,00,000/- (Rs.Two Lakhs Only) in respect of clearances covered vide show cause notice dated 1.8.97, on the notice M/s Siddarth Tubes Ltd. Sarangpur under Rule 9 (2) readwith Rule 173Q of the Central Excise Rules, 1944.
(iii)Notice is also liable to pay interest on the amount above confirmed for recovery excess duty, in terms of section 11AA of the Central Excise Act, 1944.”
3. Aggrieved by this Order the assessee went up in appeal. That appeal was disposed of by order in appeal No.1189-CE/BPL/2000 dated 16.17-11.2000. That order is under appeal.
4. The main grievance voiced by the appellant is that the appellate order has not decided any issue raised by the appellant, nor was any duty liability quantified. Ld. D.R. was not in a position to throw much light on the decision rendered by the Commissioner. According to him, duty liability of the assessee has to be quantified in the light of the principles stated by this Tribunal in Final Order No.152/2000 dated 6.3.2000. In the light of those principles, according to the ld. D.R. Adjudicating Authority has to re-quantify duty liability.
5. While disposing of the appeal Commissioner observed in paragraph 3 that:
“”….The CEGAT in a similar case has held that the cost of Galvanization and sockets alongwith service charges are includible in the value of the pipes and tubes while the cost of the rubber/PP rings and inspection charges are not includible provided the latter was an additional inspection at the behest of the appellants who also met the cost of such inspection.”
6. Pursuant to this observation, the Commissioner ought to have himself re-computed the duty liability or remanded the matter to the Adjudicating Authority for re-computation. This having not been done, the only course now open to us is to remit the matter to the Adjudicating Authority to re-compute the duty liability of the assessee in accordance with the principles stated by CEGAT in Final Order NO. 152/2000-A dated 6.3.2000. Accordingly, we set aside the Orders passed by the Authorities below and remit the case for re-computation of the duty liability as stated above.
7. While passing fresh order of adjudication assessee will be having the right to place all the records to substantiate their claim for deduction on account of unloading and stacking at the buyers premises.
(Pronounced & dictated in the open court)