Surya Prakash Kesarwani, J. - (1.) Heard Sri A.R. Madhav Rao, learned counsel, assisted by Sri Nishant Misra, learned counsel for the appellants and Sri B.K. Singh Raghuvanshi, learned senior standing counsel for the respondents.
(2.) This appeal was admitted on 03.03.2005 on the following questions of law: "A.Whether the Tribunal in its remand order having affirmed the finding with reference to the excess weight over and above weight of packing material (Standard excess weight) the Tribunal was not justified in confirming the demand with reference to the weight of packing material also? B. Whether in view of the directions in the earlier order of remand regarding denovo adjudication, the entire matter was at large for denovo adjudication and not only the question where excess weight over and above standard excess weight was part of the trade practise of Industry manufacturing and selling carbon black? C. Whether the order passed by the Central Excise and that of the Tribunal being violative of principles of natural justice as no opportunity was given to the appellant regarding the evidence obtained from Hitech Carbon and Philips Carbon Ltd., behind the back of the appellant, specific ground has been taken by the appellant in ground no.8A/11 and the Tribunal was not justified in considering and deciding the same? D. Whether in spite of the weight of packing material having been mentioned in the invoice and in spite of the fact that standard excess weight, which only represent weight of the packing material being entirely different than weight of excess quantity of Carbon black, the Tribunal was not justified in not deciding the said question while confirming the demand? E. Whether no additional consideration having been admittedly received by the appellant in respect of the alleged excess quantity hence no duty was paid following the trade practise and various judgments of the Tribunal and hence no penalty can be legally imposed -
(3.) Learned counsel for the appellants submits that the Tribunal by its Final Order No.A/907-909/2000-NB (DB), dated 19th October, 2000, in Appeal No.E/832-34/1999-NB of 1999 remanded the matter to Adjudicating Authority for de-novo adjudication and as such, all the points were open for determination, but by the impugned Final Order No.103 to 105/05/NB (A), dated 19.10.2004 passed in Appeal No.E/3441- 43/04-NB (A), the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') arbitrarily and incorrectly dismissed the appeal of the appellants on the ground that findings regarding removal of excess carbon black were confirmed in the earlier Final Order of the Tribunal dated 19.10.2000 and the matter was remanded for limited purpose to examine the trade practise of slightly over-filling carbon black. He further submits that the finding of the Tribunal with regard to trade practise of over-filling of bags in respect of carbon black being without any material is incorrect. The adjudicating authority neither confronted the assessee with the alleged inquiry report regarding trade practise of overfilling nor afforded opportunity to rebut it. He submits that the excise duty has been paid on ad valorem basis and the packing material was in addition to the weight of carbon black. The nature of carbon black is such that it sticks with the surface of the bag to which it comes into contact and for that reason, they were dispatching a slightly excess quantity to avoid any complaints of the customers for short supply. He further submits that in an invoice of 10 M.Ts. of carbon black, the net weight brought on record was 10.240 M.Ts. Out of this, 0.240 M.T. excess weight, 0.160 M.T. was packing material and 0.080 M.T. was the excess quantity of carbon black, but the respondents had demanded duty, both on 0.160 M.T. of packing material as also on 0.080 M.T. of carbon black filled in bags. He, therefore, submits that the impugned order of the Tribunal is unsustainable inasmuch as the duty liability has been discharged on ad valorem basis and even if they had supplied excess carbon black, they had not charged or realised any excess amount in regard to the excess quantity supplied. The remand was made by the Tribunal, vide its order dated 19th October, 2000 for de novo adjudication, and therefore, the finding in the impugned order that the remand was for limited purpose, is incorrect. He submits that the finding of clandestine removal is not based on any evidence on record.;