Customs, Excise and Gold Tribunal - Delhi
Perfect Stoneware Pipes vs Commissioner Of Central Excise on 3 November, 2000
Equivalent citations: 2001(73)ECC569
ORDER P.S. Bajaj, Member (J)
1. This appeal has been filed against the order dated 21.1.2000 passed by the Commissioner (Appeals) vide which he had upheld the Order-in-Original dated 17.9.98 confirming the duty demand of Rs. 1567 in respect of coal ash (cinder) on them for the period 1.12.1997 to 31.4.1998.
2. The facts giving rise to this appeal may be briefly stated as under:
2a. The appellants are engaged in the manufacture of salt glazed stoneware pipes classifiable under chapter heading 6904 of CETA chargeable to nil rate of duty as per Notification No. 04/97-CE dated 1.3.97. During the manufacture of this product in the factory, Coal ash (Cinder) is also produced and cleared by them. They did not however, pay any duty on the clearances of the coal ash during the period on dispute and accordingly were served with show cause notice dated 8.6.98. They contested the correctness of the notice on the ground that Coal ash (Cinder) was not excisable being not a manufactured product. They accordingly denied their liability to pay the duty thereon. The Assistant Commissioner, however, did not accept their version and confirmed the duty demand of Rs. 1567 on them by holding that the product coal ash (cinder) was classifiable under sub-heading 2621 of the CETA and dutiable in view of the Boards circular No. 386/19/98-CX dated 7.4.98. This order of the Assistant Commissioner had been confirmed by the Commissioner (Appeals) through impugned order.
3. The appellants have come up in appeal against this order.
4. We have heard Shri J.M. Sharma, Consultant for the appellants and Shri Sheo Narayain Singh, SDR for the Revenue.
The excisability of coal ash (cinder) as held by the Commissioner (Appeals), has not been contested before us by the Ld. Counsel and as such the impugned order of the Commissioner (Appeals) to that extent is upheld. What has been mainly contended by the Counsel is that the plea of the appellants regarding benefit of SSI exemption Notification No. 16/97 dated 1.4.97 has not been considered inspite of the fact that this point was specifically raised before the Commissioner (Appeals) and that benefit of other relevant Notifications has also not been taken into account before confirming the duty demand on them. Therefore, the matter should be sent back to the adjudicating authority for considering the duty liability of the appellants, afresh. The Ld. SDR have not opposed this prayer of the Counsel.
5. We have also gone through the record. The appellants did raise the plea in the ground of appeal before the Commissioner (Appeals) while challenging the Order-in-Original of the Assistant Commissioner, that they being SSI Unit, were entitled to the benefit of Notification No. 16/97 and that their clearances having not crossed the prescribed limit in terms of that Notification, no duty demand could be confirmed on them. But Commissioner (Appeals) did not consider this plea of the Appellants as he had not recorded any findings in that regard in the impugned order. Therefore, the prayer of the appellants for remand of the matter to the adjudicating authority for considering the admissibility/availability of benefit of Notification No. 16/97 along with other relevant notifications to them, deserves to be allowed.
6. In view of the discussions made above, the case is sent back to the adjudicating authority only for the purpose of redetermining the duty liability of the appellants after considering their plea, in accordance with law, regarding the availability of benefit of Notification No. 16/97 or in any other relevant notification, after affording them opportunity of hearing.
7. The appeal of the appellants accordingly stands disposed of, by way of remand.