ORDER
Jyoti Balasundaram, Member (J)
1. After hearing both sides for some time on the application for stay of operation of the order of the Commissioner (Appeals), we (sic) that it was possible to decide the appeals themselves at this stage and hence proceed to do so with the consent of both side, after waiving pre-deposit.
2. The Deputy Commissioner of Central Excise dropped the duty demand of Rs. 90,00,334/- against the appellants herein on the ground that the inputs, namely, iron ore fines, brought into the factory, procured from M/s. Kudremukh Iron Ore company and subjected to sieving resulting in emergence of iron ore fines of the size below 6 mm were cleared on payment of duty and availing modvat credit on the entire quantity, but according to the department the iron ore fine could be removed only on payment of duty equal to credit availed in terms of Rule 57AB. Before the Commissioner (Appeals) the Revenue preferred appeals and the lower appellate authority set aside the order of the adjudicating authority and allowed the appeals, namely, by allowing the prayer of the Revenue for restoration of show cause notices; hence these appeals before the Tribunal.
3. We have heard both sides. We find that the appellants had raised pleas both on merits of the demand objecting to the same, and also on the question of maintainability of appeals by the Revenue before the Commissioner (Appeals) on the ground that while direction for preferring the appeals have been given to the Deputy Commissioner, it was the Assistant Commissioner who preferred the appeals and therefore the appeals before the Commissioner (Appeals) were not maintainable in law. We note that the Commissioner (Appeals) has not given detailed findings either on the plea of maintainability of the appeals before him or on the plea that the process of sieving of iron ore pellets to iron ore fines does not amount to manufacture and the contention of the appellants that what results was only waste on which duty is not required to be paid; we therefore set aside the impugned order and remand the case to the Commissioner (Appeals) for fresh decision on all the pleas raised before him by the assessees. He shall pass fresh orders in accordance with law after extending a reasonable opportunity of hearing to the appellants, without insisting on pre-deposit.
4. The appeals are thus allowed by way of remand.
(Dictated in the Court)