S.L. Peeran, Member (J)
1. The stay and appeal arise from the order-in-original dated 29-3-2000 passed by the Commissioner of Central Excise fixing the annual capacity Hot Air Stenter. As the issue is covered by this Final Order Nos. 807-814/2000, dated 20-6-2000 [2000 (122) E.L.T. 229 (Tribunal)] in the case of R.M. Gupta Textiles (P) Ltd. and Ors. v. Commissioner of Central Excise, Hyderabad-H. We grant waiver of pre-deposit of the amount involved and take up the appeal itself for decision.
2. In the impugned order the Commissioner has redetermined the duty liability by taking into consideration the length of the galleries. The Tribunal taken up this issue and decided in favour of the assessee in the cited case in terms of the findings in paras 8 to 11 of the order which are reproduced below:
“8. On consideration of the same we find that we have already held in our Final Order No. 414/2000 dated 30-3-2000 in the case of M/s Chi-manlal Silk Mills (P) Ltd. v. CCE as follows :
“We have considered the submissions and records of the case. On consideration of the submissions we are of the considered opinion that in view of the fact that the structure as well as the functions of the galleries is totally different from those of the hot air chamber, particularly in view of the fact that there is no provision for blowing the hot air to heat the fabric when it is passed from the galleries, therefore, the same cannot be included in the dimension of the hot air chamber of the Stenter. In this connection we find that this had been incorporated in the new rule on the matter vide Notification cited by the learned Consultant. Obviously the Govt. of India felt the need for introducing such explanation in the rule in view of the dimension as contained in the order impugned. As against this, a perusal of the order impugned shows that the different structure and role for Hot air chambers and galleries has not been examined and discussed by the Commissioner in the said order. To this extent, it appears that the order is not a speaking order.”
“9. Further, in a similar matter, in Final Order No. 713 & 714/2000 dated 1-6-2000 in the case of Vivek Textiles Pvt Ltd & Ahmed Textiles Mills Pvt Ltd. we have also considered similar matter in detail and have held as follows :
“We have carefully considered these rival submissions and records of the case. On a careful consideration, we find that in view of the divergent practices by various Commissionarates as well as earlier decisions of the various benches of the Tribunal on this issue, the Govt. vide aforesaid Notification has now specifically included an explanation that these galleries (buffer zones) should be excluded from the dimensions of the Stenter itself. The reasons for forcing the Revenue to do so were in existence even prior to the introduction of this explanation. Therefore, it is our considered opinion that the said explanation is different from a provision in a statue and would have retrospective effect. This matter has not been considered by the orders impugned and to that extent, the orders are not speaking orders. We also find similar matters were considered by this Tribunal and the same were remanded for de novo consideration as per the final orders cited above. Therefore, in views of this findings, we set aside the impugned orders and remand the matter for de novo consideration by the original authorities who shall take into consideration the explanations now available vide Notification mentioned above. In view of the appeal lying in short compass, they were considered on merits after granting waiver and stay in these matters. The appeals are allowed by way of remand accordingly”.
10. On a perusal of these decisions. We find that the law is now well settled in this respect to the following effect:
(a) that the dimension of the galleries (buffer zones) is not to be included in the dimension of the Hot air chamber of the Stenter.
(b) that explanation to this effect inserted by the Govt. of India by Notification No. 14/2000-C.E. (N.T.), dated 1-3-2000 is to be applied with retrospective effect.
11. In view of the noted above, it has acquired finality in these two decisions extracted above, we are of the considered view that there is no need to remand the matter back for re-consideration by the lower authority thereby only increasing his work. Therefore, applying the ratio of our decisions noted above, we are of the considered opinion that since these galleries are not to be included in the dimension of the Hot Air Chamber of the Stenter, therefore irrespective of the period of dispute, the orders impugned need to be set aside and the appeals are allowed with consequential relief if any as per law. Ordered accordingly.”
3. On consideration of the submissions and on perusal of the entire records, we notice that the ratio of the said order clearly applies to the facts of the present case. Therefore, applying the ratio of the same, the impugned order is set aside and the appeal allowed.