R.K.Agrawal, J. - (1.) In the present appeal filed under Section 35G of Central Excise, Act, 1944 (hereinafter referred to as "the Act") the Commissioner of Central Excise, Noida, has raised the following four substantial questions of law which are said to arise out of the order of the Custom Excise and Service Tax Appellate Tribunal, dated 3.10.2003: "1. Whether the CESTAT has committed a manifest error of law to hold the bought out items to be not dutiable whereas the order dated 22.3.2000 (Annexure No. 3) passed by Commissioner (Appeals) has become final and it was merely consequential order on quantum dated 31.10.2001 (Annexure No. 4) passed by Deputy Commissioner and upheld in appeal vide order dated 9.4.2003 (Annexure No. 5) from which the appeal arose before the CESTAT and thus it was not open for the respondent to question the dutiability of bought out items in the appeal arising out of execution order? 2. Whether the dutiability of bought out items in the manufacture of plant and equipment under Section 2(f) read with Section 3 of the Act falling under Chapter sub-heading No. 8479.90 of Central Excise Tariff Act, 1985 having been decided vide order in original dated 14.5.1999 (Annexure No. 2) following/referring the judgment of Hon'ble Supreme Court in the case of Narne Tulaman Manufacturing (P) Ltd. v. CCE, 1988 (18) ECC 165 (SC) : 1989 Vol. 38 ELT 566 (SC) and Sirpur Paper Mills Ltd. v. CCE, 1998 (59) ECC 46 (SC) : 1998 Vol. 97 ELT 3 (SC), has achieved finality in view of the unchallenged order of Commissioner (Appeals) dated 22.3.2000 (Annexure No. 3) and thus it was no longer open for the respondent to question the durability in the appeal before the CESTAT arising out of the consequential order dated 31.10.2001 (Annexure No. 4) quantifying the demand passed by the Deputy Commissioner, Central Excise, Division-I, Noida? 3. Whether the CESTAT has committed a manifest error of law and facts both in applying the ratio of decision laid down by Hon'ble Supreme Court in the case of Collector of Central Excise, Indore v. Hindustan Lever Ltd., 2000 (71) ECC 10 (SC) : 2000 (120) ELT 3 (SC) - (relevant paragraph 1 & 5) which relates to complete remand to the original authority where the party again joined the issue, whereas in the present set of facts the first order of Commissioner (Appeals) dated 22.3.2000 (Annexure No. 3) finally decided the controversy and the Assistant Commissioner was merely directed to requantify the demand in view of corrigendum to show cause notice and this order of the Commissioner (Appeals) was accepted by the respondent and thus become final inter partes? 4. Whether the order of the CESTAT and the findings recorded therein are perverse and the contention of the respondent is hit by principle of approbate and reprobate in as much as the CESTAT has completely failed to decide the controversy on the facts before it and further failed to take note of the allegations of the respondents on quantification that they are entitled to Modvat Credit on bought out items which, if allowed, shall result in duty liability to the tune of 23.56 lacs only. However, the contention of the respondent regarding Modvat Credit was rejected by the Commissioner (Appeals) vide order dated 9.4.2003, which was impugned in the appeal before the CESTAT?"
(2.) Briefly stated, the facts giving rise to the present appeal are as follows: M/s Mazz India Limited, now known as MIL India Limited, (hereinafter referred to as "the respondent") is engaged in manufacture of plant and equipment for the soap detergent etc. falling under sub-heading 8479.90 of the Central Excise Tariff Act, 1985 (hereinafter referred to as "the Tariff Act"). It is registered under the Act. The Assistant Commissioner, Custom and Central Excise, Division I, Noida, issued a show cause notice on 23.5.1997 calling upon the respondent to show cause as to why the value of bought out items used in the assembly of goods at site and claimed as trading goods during the period April 1996 to March 1997 be not recovered as it had evaded payment of excise duty amounting to Rs. 94,03,500 by non-inclusion of the value. The respondent submitted it reply on 19.8.1997 and denied to have evaded any excise duty. It further submitted that bought out items were trading goods and were attached to earth and, thus, became immovable and cannot be held to be excisable goods. It also raised a plea of limitation that the demand is barred by time. The Assistant Commissioner, Central Excise, Division I, Noida, vide order dated 14.5.1999 confirmed the demand of Rs. 94,03,500. Feeling aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), Custom and Central Excise, Ghaziabad. The Commissioner, vide order dated 22.3.2000, had held that the process of assembly and erection of plant at site manufactured by the appellant with bought out items supplied directly at site amounts to manufacture of a distinct new commercial article and chargeable to duty under the Act and the Rules. He did not disturb the findings of the Assistant Commissioner in this regard. However, he remanded the matter to the Assistant Commissioner to redetermine the quantum of duty actually due after giving an opportunity to the appellant. The relevant portion of the order of the Commissioner (Appeals) is reproduced below: "I have examined the case and have considered the submission put forth before me. 1 find that the issue regarding durability of plant machinery assembled/erected at site has now been settled by a catena of decisions by Tribunal and the Apex Court; also referred to by the Ld. Assistant Commissioner. It has been held that because the items are heavy and so have to be fixed in what appear to be a permanent position should not deceive any one into holding that they are immovable property. Fixing them is necessitated by the need to make them only functionally effective and do not answer the test of permanency. Therefore, the process of assembly, erection of plant at site manufactured by the appellants with bought out items supplied directly at side amounts to manufacture of a distinct new commercial article and chargeable to duty under the Central Act and Rules. The bought out items having been used are integral and essential part of the supplied goods, hence the value of such bought out items is includible for the purpose of levy of excise duty. I do not see any reason, therefore, to disturb the findings of the Ld. Assistant Commissioner in this regard. However, I do accept appellant's contention about the quantum of duty actually leviable consequent upon revision of the period of demand from April '96 to No. (sic) '97 till March '97 vide corrigendum Dt. 6.6.97. The quantum of duty actually due, therefore, has to be redetermined by the Ld. Assistant Commissioner and intimated to the appellants. Before that, the appellants should be given an opportunity to put forth their submission in the matter. This submission would only be confined to the quantification details and methodology. The appeal is disposed of on above terms."
(3.) The aforesaid order had become final between the parties as no further appeal as provided in Section 35E(3) of the Act has been "preferred by the respondent.;