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1. This appeal has been filed against the order dated 14-9-1989 passed by the Collector of Customs & Central Excise, Rajkot by which he had ordered confiscation of a consignment of 59 rolls of cinematographic colour film (un-exposed) positive imported by the appellants under Section 111(d) & (m) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports Control Act, 1947 levying a fine of Rs. 5 lakhs under Section 125 of the Customs Act in lieu of confiscation. The Collector also in that order imposed a personal penalty of Rs. 10 lakhs on the appellants under Section 112(a)(i) of the Customs Act, 1962. Briefly, the facts are that the appellants imported a consignment as aforesaid and filed a Bill of Entry on 11-1-1989 declaring GIF value of Rs. 32,75,17.1/-. They claimed clearance of the goods under OGL Appendix 6, List 8, Part I against Serial No. 186 of the Import Policy for April 85 - March 88. They claimed classification of the goods under Heading 37.02 of the Customs Tariff Act, 1975 and claimed exemption of duty under Notification 52/86 dated 17-2-1986 and Notification No. 157/88-Cus., dated 13-5-1988. The Customs House found that the goods were not eligible for exemption under the Notification as claimed and were leviable to duty at 100% plus auxiliary duty 45% plus additional duty @ Rs. 24 per Sq. metre, totalling to Rs. 68,09,540/- instead of Rs. 16.19,842/- as declared and claimed by the appellants. The Customs further concluded that the appellants had misdeclared the goods as Cinematographic colour film (un-exposed) positive' in order to claim the benefit of exemption under the Notification and also in order to suit the description in the Notification. When this was pointed out, the appellants requested for adjudication of the case without a formal Show Cause Notice but on hearing them in the matter. The Collector after explaining the charges against them gave them a personal hearing and adjudicated the case by an order dated 31-1-1989 in which he dropped the proceedings against the appellants with reference to the charges of misdeclaration and contravention of the provisions of the Import Policy. He, however, held that the appellants were not eligible for the exemption as claimed by them under the Notifications aforesaid. This order of the Collector was sought to be reviewed by the Central Board of Excise & Customs in exercise of the powers conferred under Section 129D(ii) of the Customs Act, 1962 and the Board directed the Collector to apply to the Tribunal for correct determination of the points raised in the Board's order. In the Board's direction, it was stated that on going through the records of the case, it was observed that the appellant had produced Small Scale Industries registration certificate dated 24-8-1985 from the U.P. Government and a Central Excise Licence issued by the Central Excise authorities at Ghaziabad, but that it was subsequently learnt that the appellants were not actual user (industrial), did not hold a valid Industrial licence under the industries (Development & Regulation) Act, 1951 and that accordingly, the import was not permissible under OGL, which was permissible only to actual user (industrial). Hence, the Board was of the view that the importation of the goods was un-authorised and liable to confiscation under Section 111 (d) of the Customs Act, 1962 and the appellants liable for penalty under Section 1.12 thereof. The Board further found that the activity of slitting and confectioning of photo-sensitised material from jumbo rolls is included under Scheduled Industries by Govt. of India, Ministry of Industries Notification dated 18-7-1986 and any party involved in such activity is required to obtain an industrial licence from the department of Industrial Development, but that the appellants herein were found to be having a licence for photographic colour paper only and not for cinematographic colour films. The Board found that the goods imported are found to be in jumbo rolls in the form of raw materials for manufacturing of cinematographic colour films, and in the circumstances, the Board was of the view that there had been a misdeclaration of the goods as cinematographic colour films (unexposed) positive to avail of the concessional rate of duty under Notification No. 50/88-CE at the rate of Re. 1/- per metre plus 45% plus CVD at Rs. 0.80 per metre. Based on this direction from the Board, the Collector filed an application before the Tribunal praying for the modification of the Collector's order dated 31-1-1989 in so far as it related to the dropping of the charges of misdeclaration and non-confiscation of the imported goods under Section 111(d) of the Customs Act, 1962 and praying for the imposition of penalty under Section 112(a)(i) of the Customs Act. This application of the Collector was disposed of by the Tribunal in its order No. 388/89-C dated 14-8-1989. In that order the Tribunal held after considering the evidence that what the appellants herein imported were jumbo rolls and not cinematographic films. The Tribunal also held that the appellants herein should hold a valid import licence and have a valid industrial licence for claiming the benefit of OGL for the import of jumbo rolls. The Tribunal also observed that the Collector was wrong in not invoking the provisions of Section 111(d) of the Customs Act regarding the un-authorised nature of the import. In this view of the matter, the Tribunal remanded the case to the Collector to readjudicate the matter after keeping in mind what the Tribunal had said in the order. The Collector, accordingly, issued a Show Cause Notice to the appellants herein dated 30-8-1989 charging the appellants with misdeclaration of the goods in order to avail of the exemption benefit and evasion of Customs duty to the tune of Rs. 51,80,698/- and also alleging that the import was un-authorised as the appellants herein did not have an Industrial Licence issued under Industries (Development and Regulation) Act, 1951 and thereby, they were not actual user (industrial) for the purpose of importing the goods under OGL. On a consideration of the reply to the Show Cause Notice and after personal hearing, the Collector adjudicated the matter as mentioned above.

24. From a perusal of the above facts it is clear that the application before the Tribunal was to determine whether there was misdeclaration and whether the import was unauthorised and Tribunal had considered the submissions of both the parties and intervener M/s. HPF in the matter and had given a clear finding that there was misdeclaration and that the import was unauthorised. It had remanded the matter to the Collector for adjudicating confiscation and penalty. The present impugned order before us of the Collector is the one passed in compliance with the order of remand of the Tribunal. We have to see in this context as to how far the present Bench can take a view different from the one given by this Bench in its order of remand dated 14-8-1989. It has been urged before us with reference to case law that an order of remand decides nothing and the reasons the court gives for its support are given only for its own convenience and for helping the lower court to proceed rightly in carrying out the order of remand and also for the preposition that the findings recorded in the remand order is neither final between the parties nor binding on the court. The citation for these prepositions are AIR 1928 Calcutta 186 and AIR 1983 Bombay 360. However, these observations have been made by the Hon'ble Calcutta and Bombay High Courts while dealing with cases under order 41 Rule 25 CPC which lays down where Appellate Court may frame issues and refer them for trial to the court whose decree is appealed from. We have already seen that the remand order of the Tribunal was one in disposal of an application for review under Section 129D(1) of the Customs Act for determining certain specific issues arising out of an adjudication order of the Collector flowing from the exercise of powers in this regard by the Central Board of Excise & Customs under that section and the Tribunal by its order of 14-8-1989 disposed of the application by giving its findings on the points raised therein. Therefore, the observations made by the High Courts in respect of cases under Order 41 Rule 25 may not be appropriate in the context of such an application under Section 129D( 1) of the Customs Act and its disposal by the Tribunal in terms of Section 129D(4) of the Act. On the other hand, even under the CPC in respect of a remand order under Order 41 Rule 23 the Allahabad High Court in the case reported in AIR 1968 All. 126 Kuber Singh v. Digvijay Singh had observed "The order of the remand passed by the High Court in the above second appeal was appealable and hence, any finding recorded or direction given in the second appeal while- remanding the appeal for a fresh hearing could not be reagitated before the court below or before the High Court and the only remedy available to the aggrieved party was to prefer an appeal against the order of remand."

In this context it is further to be borne in mind that M/s. NPL have also filed an appeal before the Supreme Court against the very same findings of the Tribunal in its order of remand dated 14-8-1989 wherein the same arguments, as to the correctness of the declaration and eligibility for import of the goods under OGL, have all been put forth. Under these circumstances, we are, therefore, of the view that on the points of misdeclaration and illegality of the import, we, as a coordinate Bench, cannot, in law and in propriety, come to a different finding than the one already expressed by the Tribunal in its order dated 14-8-1989. The question also arises as to whether M/s. NPL understood the Tribunal's order of remand as not final on the issues. That such was not their understanding is evident from their appeal before the Supreme Court wherein they have submitted "After hearing the learned counsel for the parties the Tribunal passed the impugned order dated August 14, 1989 inter alia holding that the import of cine film made by the appellant was illegal inasmuch as it is not an actual user (industrial) and that the appellant has misdeclared the goods as according to the Tribunal the goods in question are 'jumbo rolls'." It is also evident from a Reference Application filed by M/s. NPL against the Tribunal's order that it was their understanding that its order was conclusive on the issues decided by it. A Reference Application is filed under Section 130 of the Customs Act which shows that the Collector of Customs or the other party made within 60 days of the date upon which he has been served with notice of an order under Section 129B (Order of the Appellate Tribunal) not being an order relating, among other things, to the determination of any question having relation to the rate of duty of Customs or to the value of goods for assessment by application require the Appellate Tribunal to refer to the High Court questions of law arising out of such order. The application under Section 130 was filed by M/s. NPL on 16-10-1989 [C/Ref/24/89-C] listing 9 points as questions of law arising out of the order of the Tribunal. There also in the statement of facts M/s. NPL had submitted that the Tribunal in its order had held that the import of film made by the applicant was illegal inasmuch as it is not an actual user (industrial) and that the applicant had misdeclared the goods as according to the Tribunal the goods in question are 'jumbo rolls'. It may be noticed that the submissions in the appeal before the Supreme Court are also contained in identical sentences. The same understanding of the Tribunal's order by M/s. NPL is reflected in their reply to the show cause notice before the Collector wherein they had contended that the Tribunal's order of remand was limited to two points only whether the import was valid under OGL and whether there was any charge of misdeclaration by the importer. Therefore, the appellant cannot now, in our opinion, put forth the contention that the findings on these aspects by the Tribunal in its order of 14-8-1989 were not final and that the present Bench even as a coordinate Bench will be free to take a different view.

26. Several submissions have also been made before us relating to the eligibility or otherwise of the goods imported under the Exemption Notification. However, these were not points to be determined in the application before the Tribunal filed in pursuance of the directions by the Board under Section 129D(1) of the Tribunal and the remand order did not cover this issue. The Collector of Customs, Rajkot order passed in pursuance of the remand order by the Tribunal is in terms only on the illegality of the import and on misdeclaration and consequential penalty on the appellants. His findings on the eligibility to exemption are mere reiteration of his findings in the first order passed by him on 31-1-1989 which was sought to be reviewed by the Board before the Tribunal in exercise of its powers under Section 129D(1). NPL had not challenged the Collector's finding in his first order of 31-1-1989 before CEGAT denying them the benefit of exemption while dropping the charges of misdeclaration and unauthorised import. They did file a writ petition before the Gujarat High Court on the issue which NPL had withdrawn subsequent to the disposal of the Department's application under Section 129D(4) by the Tribunal in its order dated 14-8-1989. We are unable to accept the argument now made before us that the withdrawal being consequent upon the Tribunal's order of 14-8-1989, NPL are entitled to agitate the issue regarding their eligibility to exemption as an issue arising out of Collector's order dated 14-9-1989 in compliance with the Tribunal's order of remand. This is because of NPL's own understanding of the remand order, as already noted supra. In these circumstances, in our view in the present proceedings, the Tribunal is not be called upon to give any finding in the matter.