ORDER
G.R. Sharma, Member (T)
1. The captioned ROM application is directed against the Tribunal’s Final Order No. E/22/95-B1, dated 12-1-1995.
2. Arguing the ROM application, Shri Harbans Singh, the learned Counsel for the applicants submitted that it was urged before the Tribunal that the appellants had submitted duty paying documents but the learned Collector did not take them into account and did not consider their plea effectively. The learned Counsel also argued that it was stressed that the whole demand was time-barred and the demand was not maintainable but no order has been passed on this issue. The learned Counsel therefore, prayed that the order of the Tribunal may be recalled and modified or direction may be given to whom it has been remanded for looking into these points. The ld. Counsel also submitted that the above issues were argued at length at the time of hearing of the appeal but no decision was given; that as the case has been remanded to the adjudicating authority to examine the maintainability of the demand which will take into consideration all the points argued above if the entire period of demand namely from 1-8-1983 to 27-3-1987 is indicated in the remand order.
3. Shri K.K. Jha, the ld. SDR appearing for the Revenue fairly agreed with the pleadings of the learned Advocate in regard to the period involved.
4. Heard the submissions of both sides. On careful consideration of the submissions made and the Final Order passed by the Tribunal, we agree that there has been a mistake and recall para 10 of the Final Order No. E/22/95-B1 and order that para 10 of the Order shall now read as under :
“10. Heard the submissions of both sides and considered them. We observed that a limited question of whether the ship building scrap should be deemed to be duty paid or otherwise was considered by the Tribunal in the case of Collector of Central Excise v. Choday Apparaw Steel Re-rolling Mills reported in 1989 (44) E.L.T. 70. In this case the Tribunal had held that:
“12. We have heard both the sides, examined the contention and gone through the records. The dispute in all the three appeals is whether the benefit of Notification No. 208/83-C.E., dated 1-8-1983 is admissible in respect of M.S. round bars cleared by the respondents during the period from 1-1-1984 and which were manufactured out of the re-rollable scrap supplied by M/s. Vizag Shipping & Metal Processors, Vizag and M/s. Ushodaya Shipping Pvt. Ltd., Vizag. The Assistant Collector of Central Excise has observed that re-rollable scrap used in the manufacture of M.S. round bars has arisen out of breaking up of old ships. He has held that the ship breaking unit did not pay Central Excise duty on the re-rollable scrap under Central Excise Tariff Item 25 and hence the entire quantity of such scrap supplied by these two ship breaking units is clearly identifiable as non-duty paid stock for the purpose of Notification No. 208/83-C.E., dated 1-8-1983. Accordingly, he has demanded Central Excise duty on the M.S. round bars in question. The Collector (Appeals) has held that in so far as the inputs have paid duty under the Customs Tariff Act, they are clearly recognisable as duty paid stock. He has, therefore, set aside the order of the Assistant Collector. Under Notification No. 208/83-C.E., dated 1-8-1983, the Central Government exempted the final products specifed in column (3) of the table appended to the Notification and falling under Item 25 of the First Schedule to the Central Excises and Salt Act, 1944 from the whole of duty of excise leviable thereon under Section 3 of the said Act provided that such final products are made from any inputs of the description specified in the corresponding entry in Column (2) of the said table and falling under the said Tariff Item 25 on which duty of excise under the Central Excises and Salt Act, 1944 or the additional duty of Customs under the Customs Tariff Act, 1975 as the case may be, has already been paid. Explanation below this Notification says that for the purposes of this notification all stocks of inputs in the country except such stocks as are clearly recognisable as being non-duty paid, shall be deemed to be inputs on which duty has already been paid. In the present, the ship breaking units paid Customs duty on the ship under Heading 89.04 and additional duty of Customs under Item 68 of the Central Excise Tariff. The inputs which arise out of the ship breaking fell under Central Excise Tariff Item 25 and such inputs in the present case have not discharged the Central Excise duty under that Tariff Heading. What the ship breaking units have paid is the additional duty of customs equivalent to Central Excise duty on the ship under Tariff Item 68 of the Central Excise Tariff. Therefore, the inputs are clearly recognisable as non-duty paid for the purpose of this Notification. The condition laid down in the proviso to the aforesaid notification is not therefore, fulfilled. Hence the benefit of notification is not applicable to the M.S. round bars manufactured by the appellants out of the inputs supplied by M/s. Vizag Shipping & Metal Processors and M/s. Ushodaya Shipping Pvt. Ltd., Vizag. The inputs supplied by these two suppliers out of ship breaking do not stand on the same footing with the other inputs purchased from the market. There is no material before us to hold that the inputs purchased from the market are identifiable as non-duty paid, whereas the inputs supplied by the above two suppliers are clearly identifiable as non-duty paid as it is an admitted fact that Central Excise Duty under Item 25 of the Central Excise Tariff was not paid thereon. In the circumstances, we set aside the inpugned orders of the Collector (Appeals) and allow all the three appeals filed by the Revenue.”
We agree with this finding of the Tribunal. We observe that the appellants have contended that they had submitted duty paying documents and the gate passes showing the payment of duty on inputs were resumed by the Department but while rendering a finding on the question of payment of duty on inputs, the Collector had not taken these documents into consideration. We find that the maintainability of the demand cannot be determined unless a specific finding is rendered as to whether there were documents showing payment of duty and whether the contention raised in the reply to the show cause notice were considered fully. The case is remanded to the Collector, Central Excise for examination of the above issues and rendering a finding whether the demand was maintainable for the period 1-8-1983 to 27-3-1987 on the basis of evidence on record. This can be done after giving an opportunity to the appellants to be heard in person and dispose of the case in accordance with law.
5. In the result, the ROM is allowed.
