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TMI Blog2018 (3) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this case. The tribunal erred in law in not completely deciding the matter, but remanding it to the Commissioner by rendering a partial conclusion - The matter now stands remanded to the adjudicating authority for adjudication of the show cause notice afresh on merits and in accordance with law - appeal allowed by way of remand. - Central Excise Appeal No. 260 of 2016, 265 OF 2016, 286 OF 2016, 266 OF 2016 - - - Dated:- 12-3-2018 - S. C. DHARMADHIKARI PRAKASH. D. NAIK, JJ. Mr. M. Dwivedi with Ms. Shalaka Gujar for the appellants in all appeals. Mr. V. Sridharan-senior counsel with Mr.Prakash Shah for the respondents in P.C. :- 1. By the order under appeal, the Revenue says that substantial questions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005-06 and 2006-07 attracting central excise duty at the appropriate rates applicable during the material period and as to why the central excise duty of ₹ 3,62,23,608/- should not be demanded and recovered together with interest and appropriate penalty. 4. The show cause notice was adjudicated and the adjudicating authority held that the food preparations were classifiable under the above Chapter Sub-Heading. Then, there were two notifications referred and it was stated that the food preparations not cleared in sealed containers attracted nil duty. Subsequently, another notification was issued, but as far as the duty demand for the period under question is concerned, it was held that the assessee suppressed the facts and hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Mr. Dwivedi, dropping the penalty. If the matter is remanded back to the Commissioner, it should have gone in its entirety. 6. Mr. Sridharan learned senior counsel appearing for the respondents would submit that for a brief period, the activity was not conclusively held to be either a manufacture or otherwise. Now, given the tariff entry, after a specified date, the Revenue itself declared that such an activity, in which the assessee is involved, cannot be brought within the tax net. Therefore, for such a short duration and for an academic issue raised, we should neither admit these appeals nor pass an order of remand. Alternatively and without prejudice, Mr. Sridharan would submit that there was no question of invoking the extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparing food and which is stated to be the business of the assessee, amounted to manufacture. The tribunal does not hold that it is manufacture. The tribunal faults the Commissioner while passing the order-in-original for not rendering any finding much less a conclusive opinion on this point. The tribunal, at one point, was persuaded to direct a remand of the matter to the Commissioner to pass a fresh order. If the tribunal was clear in its view that the matter should go back to the adjudicating authority, then, it should have sent it for being decided afresh on all points. The difficulty arose when the tribunal does not hold that the activity is manufacture or otherwise and yet deems it fit to decide whether the extended period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner by rendering a partial conclusion. In these circumstances, we have no alternative but to quash and set aside the order under appeal. It is accordingly quashed and set aside in. The matter now stands remanded to the adjudicating authority for adjudication of the show cause notice afresh on merits and in accordance with law. We clarify that we have not expressed any opinion either on the point that the activity of the assessee amounts to manufacture and equally whether the extended period could have been invoked so as to demand the duty and interest. 11. However, we are of the opinion that given this confusion and which is directly attributable firstly to the Revenue and then to the adjudicating authority, this was not a fit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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