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TMI Blog2011 (1) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... substantiate that all goods falling under Chapter 38 (where DMT- Residue was classified) were specified as inputs and goods falling under Chapter 29, wherein DMT falls, was specified as final product - Since duty on DMT was paid, exemption to DMT-Residue was undisputedly available to the Appellants, during the disputed period - it is no doubt that DMT-Residue has been used by the appellants in their own factory for generation of steam in boiler for further manufacturing of the final products viz., DMT - Hence, after going through the facts of this case, we hold that the appellants are entitled for the benefit of the above said notifications for the period with effect from 20-3-90 till 2006 - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 to March, 1995, demanding duty on DMT-Residue and the same were adjudicated by the Ld. Commissioner, Mumbai-III vide Order-in-Original dated 31-10-1995. Ld. Commissioner confirmed the demand covered under the said SCNs. However, he held that penalties were not imposable, as there was no deliberate intention on the part of the assessee to contravene the provisions and/or not to pay duty. (g) Both the said Orders-in-Original were challenged before Tribunal, former one by the Dept. and latter one by the assessee. Latter Order-in-Original dated 31-10-1995 was set aside by the Hon'ble Tribunal, by its Order No. 2391/96/WRB dated 1-7-1996 and remanded the matter to Commissioner for fresh adjudication, holding that Dept. should make available evidence and the basis of valuation and marketability, as Notice did not specify that IPCL-Baroda had cleared identical goods on payment of duty. Former Order-in-Original dated 25-11-1991 was also set aside by Tribunal, vide its Final Order No. 75/2001-C dated 18-5-2001, following its earlier judgment dated 1-7-1996 (supra) and matter was remanded, in the light of the above. (h) In remand, Ld. Commissioner, by Order-in- Original dated 31-1-2006, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious other points, keeping the issue of marketability open. (b) that the ld. Advocate provided a chart showing the rates of duty on DMT and DMT-Residue during different periods, as under : DMT - (Dimethyl Terephthalate) DMT - Residue Year Sub-Heading Rate of duty Sub-Heading Rate of duty 1986-1987 2907.30 Nil 3801.90 15% 1987-1988 2917.10 Nil 3823.00 15% 1988-1989 2917.10 Nil 3823.00 15% 1989-1990 2917.10 Nil 3823.00 15% 1990-1991 w.e.f. 20-3-1990 2917.10 15% adv. + Rs. 5 per Kg. Effective rate Rs. 3.60 per kg. (Notfn. 24/90-C.E., Dt. 20-3-90) 3823.00 15% 1991-1992 2917.10 15% + Rs. 5 per kg. Effective rate 15% (Notn. 24/90-C.E. dt. 20-3-90 as amended by Notn. 107/90-C.E., dated 16-5-1990) 3823.00 15% 1992-1993 2917.10 15% + Rs. 5 per kg. Effective rate 15% 3823.00 15% 1993-1994 2917.10 15% + Rs. 5 per kg. Effective rate 15% 3823.00 15% 1994-1995 2917.10 20% 3823.00 20% 1995-1996 2917.10 20% 3823.00 20% 1996-1997 2917.10 20% 3823.00 20% 1997-1998 2917.10 18% 3824.90 18% 1998-1999 2917.10 18% 3824.90 18% 1999-2000 2917.10 16% 3824.90 16% 2000-2001 2917.10 16% 3824.90 16% 2001-2002 2917.10 16% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 57A(4) r/w Rule 57B(1)(iv) and such credit could have been utilized for payment of duty on DMT. There is a specific mention of eligibility of credit on inputs used for generation of steam, used for manufacture of final products, or for any other purposes, within the factory and, hence, he claims that it would be a duty neutral exercise. Looked from this angle also, the demand is not sustainable, based on settled position on the issue. (g) That the demand for the entire period of March, 1986 to March, 1990, covered under SCN dated 2-4-1991, is barred by limitation, in view of their voluntarily approaching the Dept.; applying and obtaining L-4 Licence; their claiming the disputed product to be not marketable; Supdt's letter dated 25-4-1985 clarifying classification and dutiability, if residue obtained was meant for sale; various other correspondence. Further, first Order-in-Original dropping the demand, holding it to be non-marketable; second Order-in-Original not imposing penalty; non-challenging of second Order-in-Original by Dept., etc. would also support that there was no suppression and mala fides on the part of the Appellants. (h) Ld. Advocate prayed for decision, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 482 (S.C.)], wherein it has been held that Rule 10 of CESTAT Procedure Rules, 1982, is widely framed to allow the Tribunal to decide appeal even on grounds not taken in memorandum of appeal and when Tribunal itself considering the issue on a contested hearing, Appellants cannot be shut out from pleading its case on same basis. The Ld. Advocate also pleaded that, in any case, it was incumbent upon the Assessing/Adjudicating Authority to grant the benefit of exemption and Modvat credit, even if not claimed by the assessee, in support of which he relied upon Hon'ble Apex Court judgment in the case of Anchor Pressing, reported in 1987 (27) E.L.T. 590 (S.C.). 7. After hearing both sides at length before going into the issue of marketability of the impugned products, viz., DMT-Residue. First we will consider the submissions made by the Ld. Advocate (a) whether the demands confirmed for the period 1-3-86 to 31-3-90 are barred by limitation or not? (b) and for the period subsequent to 20-3-90, whether the appellants are eligible for exemption under notification No. 217/86-C.E., dated 2-4-86 (upto 15-3-95) and thereafter under notification No. 67/95-C.E., dated 16-3-95 or not? 8.&e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remanded the matter with the following observations :- "The conduct of the Ld. Commissioner has resulted in this matter being allowed as remand once again. We find that the Commissioner should comply with the direction of this Tribunal. In case they have any grievance, they could always take up the matter in appeal. Such an act, as committed in this case of non-compliance of two remand orders, does not speak well about the conduct of a senior officer sitting as a quasi judicial adjudicator. The Commissioner sitting as an adjudicator is required to be fair and impartial in his approach, to determine the issues which are placed before him. We hope that in this remand proceedings now being ordered, the material from an independent market enquiry along with the law as now settled by the Apex Court as regards the excisability of all kinds of residue and waste; thereafter apply the law to the facts so ascertained after supplying the material to the manufacturer and hearing them on the same. Thereafter all issues in this appeal be redetermined". 13. From the perusal of the said order, it was directed to the adjudicating authority the issue was to be decided by the adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a Judicial Tribunal. 18. From the above observation, it is clear that the Tribunals are set up to do justice with the litigants within the framework of law. Moreover, in the Excise Act, Section 2(a) defines the adjudicating authority, which means any authority competent to pass any order within this Act. It means that the adjudicating authority has to pass order within the Act. 19. We find that in this case although the adjudicating authority has arrived at a decision that the impugned goods viz., DMT-residue is marketable then the liability casts on the adjudicating authority to arrive at a correct assessable value, to classify product correctly and to ascertain whether the assessee is entitled for benefit of any exemption notification or not and thereafter to arrive at the correct liability. 20. We have observed that the adjudicating authority has arrived at the decision that the product in question is marketable (which is not admitted by the appellant), but thereafter the adjudicating authority has failed to do his duties under the act i.e., w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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