ORDER
J.H. Joglekar, Member (T)
1. The facts leading to these appeals are the same. The appellants are the same. These three appeals are therefore being disposed of by this common order.
2. The appellants manufactured aerated waters using soft drink concentrate. A formula was given by the assessees to the department indicating the ratio between the concentrate used and aerated waters manufactured. On examination of actual utilisation of the concentrate the jurisdictional officers were of the opinion that the concentrate shown to have been used should have produced a far larger quantity of aerated waters than that shown in the production registers of aerated waters. A series of show cause notices were issued relating to different periods alleging short levy of duty. In a number of adjudication orders the adjudicating officers confirmed the demands and imposed penalties. In the single impugned order leading to these three appeals duty amounting to Rs. 38,45,172/- was confirmed and a penalty of the same amount was imposed under Section 11 AC of the Central Excise Act, 1944.
3. We have heard Shri R. Nambirajan, Advocate appearing with Shri R. Srinath, for the appellants. Shri Deepak Kumar represented the Revenue.
4. Shri Nambirajan stated that the same issue in the case of earlier show cause notices was decided by the Tribunal in their Final Order No. C-II/1674-1675/99/WRB, dated 13-7-1999 in favour of the assessees. We have seen the judgment.
5. Paragraph 4 of the order reads as under :
“4. It was pointed out by the ld. Counsel that even when the applications for stay viz. E/Stay-2763 & 2762/98-Bom were decided, it was pointed out by the Bench in Feb.1999 that the issue is covered by the judgment of the Tribunal in the case of Parle Beverages Ltd. v. CCE (A. No. E/1730-R/97-BOM). Both the parties agreed that the issue is covered by the cited judgment. In the said judgment, this Tribunal had held that the demand for duty viz. the essence of Rule 173E is that the norm of production to be complied must be on the fixed at a time when the production was considered normal having regard to the various factors mentioned there. It may be possible that not all the factors can be taken into account. In the present case, there is no attempt to consider any of the factors other than raw material before arriving at the norms. Therefore, it was held that it cannot be held that the formula by itself without consideration of any of the other factors would not amount to determination of norms under Rule 173E. It was, therefore, held that there was insufficient basis for the demands of duty. The facts are identical to both the cases. Hence, following the said judgment, we allow the appeals, set aside the impugned order with consequential relief, if any, according to law.”
6. Following the law given in the cited judgment, we allow these three appeals with consequential relief, if any.