Cce, Chennai vs M/S. Boc (India) Ltd

(Arising out of Order-in-Appeal No. 24/2004 (M-I), No. 3/2004 (M-I) (D) & No. 25/2004 (M-I), all dated 30.01.2004, passed by the Commissioner of Central Excise (Appeals), Salem).

CCE, Chennai : Appellants

Vs.

M/s. BOC (India) Ltd. : Respondent

Appearance

Ms. Indira Sisupal, AC(AR) Ms. Cecillia Parthasarathy AC (AR) For the applicants

Ms. P.M. Anuradha, Adv.

For the respondents

CORAM

Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member

FINAL ORDER No. 40600-40601 / 2015

Date of Hearing/Decision: 28.05.2015

Per: R. Periasami

Revenue filed these two appeals against the common Order passed by the Commissioner (Appeals) all dated 30.01.2004. As the issue is arising out of a common OIA, both the appeals are taken up together for final disposal.

2. After hearing both sides we find that the Appeal No. E/593/04 is filed against the OIA No. 24/2004 (M-I) & No. 3/2004 (M-I) (D) dated 30.01.04. Appeal No. E/594/04 filed against OIA No. 25/2004 (M-I), dated 30.01.2004. when these appeals were listed on 22/9/14, 08.01.15, 8.04.15, 22.04.15 and 29.04.15, this Bench directed both sides to ascertain the status of the appeals already remanded to the Commissioner (Appeals) and to verify and confirms whether the present appeals are already covered in the said Tribunals order dated 20.02.2007. The Ld. Advocate and Ld. AR submits that the LAA passed common order covering appeals and the present appeals are against OIA No. 24,25 & 3/2004 all dated 30.01.04 are not covered in the Tribunal order. We find that the Tribunals order dated 20.01.04 in the appellants own case BOC India Ltd. Vs. CCE reported in 2004 (175) ELT 236 (Tri.-Cal.) had allowed their appeal and the Revenue preferred appeal before the Honble Supreme Court. The Civil Appeal No. 3455/04 filed by the Revenue was admitted by the Honble Apex Court (UOI Vs. BOC India Ltd.) and is still pending. On perusal of this Bench Final Order No. 155-157/2007 dated 20.02.2007, we find that OIA No. 17/2004 (M-II), 1/2004 (M-II) (D), 18/2004 (M-II), 19/2004 (M-II) all dated 30.01.2004, were already remanded to the Commissioner (Appeals). Para-4 of the said order is reproduced as under:-

4. After examining the submissions, we find that learned Commissioner (Appeals) has chosen to follow the Tribunals Final Order No. A/35/KOL/2004 ibid for the purpose of determining the relevant valuation issue, without any discussion on merits. Now that the Departments appeal against that order has been admitted by the apex Court, though without any stay of operation, finality and correctness of that order are in jeopardy, as held by the apex Court in West Coast Paper Mils case. In the circumstances, as rightly pointed out by learned SDR, it may not be correct to assign precedent value to the above order of the Eastern Bench till the Departments appeal is rejected by the apex Court. For the same reason, a shadow of doubt has been cast on the correctness of the impugned order, wherein the aforesaid decision of the Tribunals Eastern Bench was blindly followed without any discussion on merits. For this reason, we think, we have no option but to set aside the impugned order and direct learned Commissioner (Appeals) to pass a speaking order on the above valuation issue on merits without reference to the Tribunals order now under challenge before the Honble Supreme Court. The appellate authority will, however, be at liberty to rely on any appropriate judicial authority not affected by the apex Courts ruling in West Coast Paper Mills (supra). Needless to say, the assessee shall be given a reasonable opportunity of being heard.

As seen from the above order, we find that this Tribunal has set aside the impugned order and remanded three appeals arising out of four OIAs all dated 30.01.2004. Appeal No.E/682 to 684/2004 out of seven OIAs dated 30.01.2004, to the Commissioner (Appeals). The Ld. Advocate also informed this Bench that these appeals are not disposed and still pending before the lower appellate authority. By taking into consideration of this Tribunal order dated 20.02.2007 and also considering the Civil Appeal filed by the Revenue against Kolkata Tribunal Bench Order dated 20.01.2004 is admitted by the Apex Court still pending the present appeals whichever left out needs to be remanded to the LAA as all these appeals are arising out of common OIA. Accordingly, we set aside the impugned orders and remand the cases to the Commissioner (Appeals) with a direction to decide the case in denovo along with four appeals already remanded in the Tribunals order above and still pending before LAA. LAA shall give reasonable opportunity of hearing to the appellants before deciding the issue, subject to the outcome of the Revenue appeal pending before the Honble Supreme Court. Accordingly, both the Revenue appeals are allowed by way of remand.

(Order dictated and pronounced in the open Court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

BB

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