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TMI Blog2003 (4) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... direct that in the first instance those appeals shall stand remitted to the concerned Assistant Commissioners to hear the parties and decide only the question of unjust enrichment having regard to the provisions of Section 11B of the Act. It will be open to the respondents to challenge the finding if it goes against them before the appellate authority and/or before the Tribunal. If no appeal is preferred against an adverse finding by the Assistant Commissioner, that will be an end of the matter and no further consideration by the Tribunal will be necessary. However, if it is ultimately found that the respondents have not passed on the burden of excise duty to their buyers then the Tribunal will consider the other questions, which we have remitted to it for its consideration and the Tribunal shall thereafter dispose of the matters in accordance with law. To enable the Tribunal/ Commissioner to pass fresh orders, we set aside the impugned judgments and orders of the Tribunal in all the appeals, as also the Order of the Commissioner in Civil Appeal. - 7165 of 2000 - - - Dated:- 22-4-2003 - S.N. Variava and B.P. Singh, JJ. [Judgment per : B.P. Singh, J.]. - This batch of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of excise duty and, therefore, ordered recovery of duty, interest, penalty etc. The Tribunal on appeal set aside the order of the Commissioner, Central Excise (Adjudication), Delhi holding that since no duty was payable on cold rolled strips, there was no evasion of excise duty. 7.The representative facts may be taken from C.A. No. 7165 of 2000. 8.M/s. Steel Strips Ltd., respondent herein, held Central Excise Registration for the manufacture of cold rolled steel strips. It had paid central excise duty on cold rolled steel strips made from hot rolled steel strips between the period 19-6-1996 to 29-6-1996 amounting to Rs. 42,07,977/-. It filed an application for refund of the excise duty so paid on cold rolled steel strips relying upon the decision of this Court in its own case reported in 1995 (77) E.L.T. 248 (S.C.) : Collector of Central Excise, Chandigarh v. Steel Strips Ltd. According to the respondent this Court held in the aforesaid decision that hot rolled strips upon which excise duty had admittedly been paid did not undergo the process of manufacture at the hands of the assessee which resulted in the production of cold rolled strips and, therefore, no excise duty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re P-III. He held that on account of the amendment of the Central Excise Tariff with effect from 28th February, 1986, hot rolled strips and cold rolled strips must be treated as two separate items which have been dealt with separately in the tariff. Under the old tariff all strips were classified under tariff item No. 26AA, but that the legal position having changed after the amendment of the tariff, the two manufactured commodities were distinguishable and different from each other being covered by two separate sub-headings and, therefore, excise duty was payable on the cold rolled strips as well as on hot rolled strips. It was further held in the facts of that case that since the claimant had passed on the burden of excise duty to the buyers, it was not entitled to claim refund under Section 11B of the Act. The Assistant Commissioner, therefore, held that the judgment of the Supreme Court, which was in respect of period prior to 28th February, 1986 was not applicable to the claim for refund which pertained to the period after the amendment of the tariff. In the said order the Assistant Commissioner also observed that cold rolled strips are a different product from hot rolled stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cold rolled steel strips from hot rolled strips amounted to manufacture. No evidence had been brought on record to show that such process amounted to manufacture giving rise to duty liability. It further held that the mere fact that hot rolled steel strips and cold rolled strips fall under two different sub-headings under the same chapter was not sufficient to conclude that the process of cold rolling from hot rolled strips amounted to manufacture. The burden was cast upon the revenue to show that the manufacture had taken place but the department had failed to discharge that burden. On these findings the Tribunal held that the refund claim was admissible on merits. However, it remitted the matter to the Assistant Commissioner to enable the respondent to satisfy him that they had not passed on the burden of duty to their customers as required by Section 11B of the Act. 16.In the connected appeals this order of the Tribunal has been noticed and followed. 17.Learned Counsel for the appellant submitted before us that the fact that hot rolled strips and cold rolled strips were classified under two distinct sub-headings under the amended tariff was itself sufficient to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such process amounted to manufacture so as to give rise to duty liability. In this state of the record placed before us, it is not possible for this Court to express its considered opinion on this issue and it has, therefore, become necessary to remit this matter for fresh consideration on the basis of material on record. 20.Before us, it was also contended on behalf of the respondents that the show cause notice issued to the respondents was defective inasmuch as the show cause notice, apart from referring to the fact that the two items were covered by two separate and distinct sub-headings, did not state that the process undertaken by the respondents resulted in the manufacture of a new product. Since that was not stated in the show cause notice, the department cannot be permitted to go beyond the facts stated in the show cause notice. This aspect of the matter has also not been considered by the authorities under the Act. 21.It was then contended by the respondents before us that reliance upon two distinct sub-headings under the amended Excise Tariff itself was not conclusive and good enough to hold that there was manufacture of cold rolled strips by the respondents. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arth" on which duty has been paid. It remains earth even after the processing. Thus if duty was to be levied on it again, it would amount to levying double duty on the same product." 23.In the result these appeals are disposed of by remitting to the Tribunal in Civil Appeal 7165 of 2000 and Civil Appeal Nos. 7706-7711 of 2002, and to the Commissioner of Excise (Appeals) in Civil Appeal Nos. 439-442 of 2002 to consider and record findings on the following questions and dispose of the matters before them in accordance with law. The consideration of these questions shall be on the basis of the material on record, and no further evidence shall be allowed to be adduced. 1. Whether the Excise authorities have led any evidence before the first adjudicating authority on the question as to whether cold rolled strips are the result of a process of manufacture undertaken by the respondents, or whether the material referred to in the order of the Assistant Commissioner is based upon his own personal knowledge or is based on authoritative publications? The burden is on the department to prove that the process of manufacture resulted in emergence of a commercially distinct commodit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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