S.L. Peeran, Member (J) - (1.)THE appellants are aggrieved with Order -in -original No. 1/2004 dated 25.3.2004. This is a second round of litigation. The Tribunal by their earlier Final Order No. 50/2000 dated 7.1.2000 had remanded the matter with specific directions for recalculation of duty. The appellant's contention is two folds. In the first instance, it is stated that although four hearings had been granted to them but they could not appear on those hearing dates due to certain genuine reasons. Even for the last date of hearing, on which date they could not appear, they were forced to ask adjournment for very genuine reason. It is submitted that the request for adjournment should have been considered and they should have been heard in the matter. The second plea is that Para 16 of the impugned order has recalculated the figures and has confirmed the duty liability. It is stated that for each year there is a separate rate of duty in terms of the tariff which has not been taken into consideration and the higher rate has been adopted which is not as per law.
(2.)THE learned Counsel relies on the following judgments and the gist of the order. Sl. No. Citations Gist 1. 1999 (113) ELT 774 (SC) Rate of duty prevalent on the date -Shree Synthetics Ltd. of removal applicable even though v. UOI and Ors. taxable event is manufacture or production of excisable Article - Rule 9A of Central Excise Rules, 1944 and Section 3 of the Central Excise Act, 1944. 2. Rate of duty and tariff valuation -Gokal Chand Rattan Chand - Rule 9A(i)(ii) of the Central Woolen Mills v. CCE, Bombay Excise Rules, 1944 applicable, when dates of actual removal of goods ascertainable, and not Rule 9A(5) ibid. 3. Rates of duty prevalent on the -Wallace Flour Mills date of removal applicable - Rule Company Ltd. v. CCE 9A of the Central Excise Rules 1944. 4. Rate of duty - Exact duty of -Jona Caps & Containers removal being known is clandestine v. CCE, Cohin removals, rate of duty applicable to be the rate applicable during the financial year in which removal taken place - Rule 9 (i)(ii) of Central Excise Rules, 1944. 5. Rate of duty - Classification -Nahan Foundry Ltd. v. CCE, list having been approved by department, Chandigarh rate of duty as prevailing on date of clearance in terms of Rule 9A(1)(ii) of Central Excise Rules, 1944 applicable (para 4) He submits that if an opportunity of hearing is given to them, they would demonstrate that the duty calculation in Para 16 of the impugned order is not correct and not in terms of the prevailing tariff rate for each year. He submits that their submission ought to have been taken into consideration and relief should have been given to them. Non -grant of these benefits and not properly calculating the rate of duty has resulted in failure of justice to them. It is also submitted that the production and total clearance figures shown in the calculated table has also not been disclosed to the appellants. The said calculation is erroneous and cannot be adopted. It is submitted that the factory was not working and the total working days in each of the year represented in the table is not correct. He submits that they would be able to produce records to show the discrepancy in the number of working days, total production and clearances for each year shown in the table, if an opportunity is given to them. Therefore, they pray for remand of the matter, so that all these aspects can be reconsidered.
(3.)THE learned Counsel further submits that they have records to show the exact raw materials utilized and the final products manufactured by them. They would be able to establish that the quantum arrived at in the table in Para 16 is not correct. It is also submitted that Revenue has not produced any evidence for receipt of raw materials to the extent of production shown in the table. The learned Counsel submits that he had appeared before the Commissioner and examined the entire matter. The said Commissioner did not pass the order for two years and the subsequent Commissioner has passed the order without granting an opportunity to them.
The learned JDR do not have objection for remand of the matter for denovo with regard to the correct quantification of the duty in the matter.