ORDER
Lajja Ram, Member (T)
1. These are two stay applications filed by M/s. Steel Authority of India Ltd. praying for waiving pre-deposit of duty amount of Rs. 5,31,23,646 and penalty amount of Rs. 6 lakh.
2. Shri G. Shiv Das, Advocate appearing for the applicants/appellants submitted that the goods involved are magnesite bricks and other refractory materials. These magnesite bricks and refractory material are used in lining of the furnace for producing iron and steel. He referred to the provisions of Notification No. 281/86-CE dated 24.4.86 and submitted that these goods have been manufactured in a workshop and had been used for maintenance of the furnace. It was his submission that the various Tribunal’s decisions and extended meaning had been given to the “workshop” and in effect when the goods are manufactured in the factory and they are used for repairs and maintenance of the machine they are eligible for the benefit of the said Notification. It was his plea that the furnace was a machinery. He also makes an alternative plea that if the benefit of Notification No. 281/86-CE was not available then the appellants would be eligible for the benefit of Notification No. 217/86-CE dated 2.4.86. He however, fairly agrees that his alternative submission was not taken by the appellants before the lower authority. He submits that in view of the Tribunal’s decision in the appellant’s own case (Appeal Nos. E/372-374/88-B1 disposed of by the Tribunal under Final Order No. E /732-754/97-B dated 28.4.97) stay be granted and the matter remanded to the Jurisdictional adjudicating authority for taking their alternative plea into consideration also.
3. In reply Shri R.S. Sangia, J.D.R. reiterated the findings of the Collector’s Central Excise and submitted that the furnace was not a machinery and therefore, the benefit of Notification No. 281/86-CE was not available. As regards the alternative plea of the appellants, he submitted that this plea has not been taken by the appellants earlier but he has no objection for the remand of the matter to consider this alternative plea, it being a legal point.
4. We have carefully considered the matter. Today only stay applications are listed for hearing. We find that the Tribunal’s decision in the appellant’s own case disposed of Vide Final Order dated 28.4.97 referred to above was on the limited question of whether the goods manufactured in a factory could be considered whether they were manufactured in the workshop by giving it an extended meaning. The Tribunal had followed its earlier decision in the case of Indian Iron & Steel Co. v. C.C.E. and had set aside the impugned order. The question whether the furnace was machinery or not was not specifically discussed and argued before the Tribunal. Prima facie, it appears that the furnace may not be considered as machinery. We find that the appellants had referred to the Not. No. 217/86-CE and prima facie it appears that the benefit of this Notification could be available to the appellants. This issue was not however, before the lower authority and we are not benefited by any finding on this issue by the adjudicating authority.
5. Although we are considering disposal of the stay applications today, both the sides agree that for considering the alternative plea of the appellants, the matter could be remanded to the jurisdictional adjudicating authority. Thus with the consent of both the sides after giving the stay of the recovery, we take up the matter for final hearing and remand the matter to the jurisdictional adjudicating authority for de novo consideration in the light of our above observation and then after giving an opportunity to the appellants pass an appealable speaking order as per law. The case-law cited by the appellant may also be taken into consideration. Thus, both these appeals are allowed by way of remand. Cross-objections are also disposed of accordingly. Stay applications also get disposed of.