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TMI Blog2012 (12) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not have gone into other issues which have already been decided by the Tribunal holding that at the relevant time the process undertaken by the appellant amounted to manufacture and the appellant had cleared the same on payment of appropriate excise duty. What the Commissioner has done is to re-consider an issue which has already been settled in favour of the appellant in the previous proceedings by this Tribunal which is not permissible as the Commissioner is subordinate to this Tribunal in judicial matters. Therefore, the impugned order is not sustainable in law. X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner has confirmed the demand on a totally different ground saying that as per the ER-1 returns submitted by the assessee they had cleared the imported materials as such and the documents do not show that what they had sold were only the duty paid imported materials. Thus, we find that there is an dichotomy in the grounds alleged in the show-cause notice and the grounds on which the demands have been confirmed in the adjudication order. The appellant has submitted that they have maintained detailed records, which would clearly reveal that whatever has been imported by them under the advance licensing scheme has been subjected to various process amounting to manufacture as clarified by the Board in Circular dated 07.09.2001. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so avail the facility of a supporting manufacturer, if it is so required, which itself shows that manufacturing process can be undertaken not only by the importer but also by others, subject of course to the endorsement to that effect in the advance licence. Therefore, the violation, if at all there is if any, is only a minor technical infraction and is a curable defect and the substantive benefit under an exemption notification should not be denied on such technical grounds, as has been held in a number of judicial pronouncements. In view of the above, we remand the matter for a fresh consideration by the adjudicating authority. Needless to say, the appellant should be granted a reasonable opportunity to submit their defence along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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