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TMI Blog2005 (12) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... materials without payment of duty. The Department in a show cause notice demanded duty of excise on the above clearances, invoking the proviso to Section 11A(1) of the CE Act, 1944. Interest on duty was also sought to be recovered under Section 11AB. The show cause notice also proposed penalties on the Company under Section 11AC and Rule 173Q of the CE Rules, 1944. In their reply to the show-cause notice, the respondents disputed the assessable value of the goods on various grounds. They also resisted the penalties proposed. The original authority in adjudication of the dispute, confirmed the demand of duty to the extent of Rs. 55,230/- against the Company after accepting their plea of cum-duty price under Section 4(4)(d)(ii) of the Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 268 (S.C.). Relying on these decisions of the Hon'ble Apex Court, the Commissioner (Appeals), recorded a finding that spent solvents were not excisable. 3. Learned SDR pointed out that the question whether spent solvents were excisable or not had never been raised before the original authority and, further, that this question, raised before the first appellate authority by the assessee, was not properly examined by the Commissioner (Appeals). 4. Learned Counsel for the respondents has pointed out that the Bangalore Bench of the Tribunal had occasion to consider the above question in a case of theirs and that the Bench remanded the issue to the original authority for fresh adjudication. It is further pointed out that pursuant to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a commodity is a fundamental question to be examined at the original level. For this reason, the matter requires to be remanded to the original authority. 6. In the result, the orders of the lower authorities are set aside and the original authority is directed to decide on the question whether the spent solvents generated by the Pondicherry Unit of the Company during the period of dispute could be considered to be a manufactured product and to be marketable so as to be exigible to duty of excise. The authority shall pass a speaking order on the issue and, depending on its decision, proceed to deal with the duty demand. However, it will not be open to the authority to levy interest on duty from the assessee under Section 11AB or impose pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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