SWASTIK FRAGRANCES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN this appeal at the instance of the assessee the challenge is against the order passed by the Commissioner (Appeals) dated 4 -2 -93 in an appeal filed by the Department against Order -in -Original No. 3/98, dated 31 -3 -98. Mainly two contentions are raised by the appellant. It is submitted that Order -in -Original No. 3/98 has attained finality under Final Order No. 605/2000 -A, dated 26 -7 -2000 [2000 (121) E.L.T. 375 (T)] passed by this Tribunal. No challenge against that Order -in -original can be entertained subsequently by the Commissioner (Appeals). In support of the above contention reliance is placed on the Larger Bench decision of this Tribunal in CCE, New Delhi v. LM.L Ltd. (Scooter Division) - 2002 (143) E.L.T. 431. Subsequently it is submitted, that the impugned order has been issued by the Commissioner (Appeals) remanding the matter for fresh consideration by the Deputy Commissioner without jurisdiction as the Commissioner (Appeals) has no power to remand under the amended Section 35A of the Central Excise Act. In support of the above contention reliance was placed on another Larger Bench decision of this Tribunal in CCE, Bhubaneswar v. Oripol Industries - 2003 (155) E.L.T. 278.

(2.) APPELLANTS are engaged in the manufacture of Pan Masala falling under Tariff Heading 2106 of the Central Excise Tariff Act, 1985. Under a show cause notice dated 12 -1 -98 for the period 1 -4 -94 to 14 -11 -95 the Department proposed to disallow certain deduction. Proposals were upheld by the Assistant Commissioner of Central Excise, Noida under Order -in -original No. 3/98, dated 31 -3 -98. The assessee took up the matter in appeal before the Commissioner (Appeals) who declined to interfere with the Order -in -original. Thereafter the assessee filed appeal E/1184/2000 -A before this Tribunal. Under Final Order No. 605/2000 -A, dated 26 -7 -2000 [2000 (121) E.L.T. 375 (T)] this Tribunal set aside the order impugned and allowed the appeal. It is thereafter the Commissioner (Appeals) passed the impugned Order -in -Appeal. Thus the Commissioner (Appeals) has considered the validity of an Order -in -Original which was not in existence at the time of his consideration as it was already set aside by this Tribunal as early as on 26 -7 -2000. It is contended on behalf of the appellant that the impugned order is non est in the eye of law as Order -in -Original No. 3/98, dated 31 -3 -98 had already merged in the Final Order dated 26 -7 -2000 passed by this Tribunal. Learned Departmental Representative tried to contend relying on the decision of the Supreme Court in Mauria Udyog Ltd. v. CCE, Delhi -II - 2002 (146) E.L.T. 37 (S.C.) that since the issue considered by this Tribunal in Final Order dated 26 -7 -2000 was not the same which was considered by the Commissioner (Appeals) in the impugned order the doctrine of merger cannot be put against the Revenue. We do not find that the above decision will be of any help to the Revenue in this case. In the case before the Supreme Court the appeal by the Revenue was restricted to reduction of penalty and that was the only issue to be considered by the Tribunal in the appeal by the Revenue. But in the present case on going through the Final Order passed by this Tribunal dated 26 -7 -2000 we find that the issue involved relates to the quantum of the duty liability of the assessee. The contention raised by the assessee on the issue of incentive scheme was accepted. Thus by Final Order of this Tribunal the quantum of duty due from the assessee was finally decided. Thereafter it is not open to the Revenue to file an appeal from the Order -in -Original in respect of a different item of deduction claimed by the assessee which would affect the quantum of duty due from it. We, therefore, hold that the Commissioner (Appeals) had no jurisdiction to pass the impugned order in the light of the Final Order passed by this Tribunal dated 26 -7 -2000. We are also of the view that in the light of the Larger Bench decision of this Tribunal in CCE, Bhubaneswar v. Oripol Industries - 2002 (155) E.L.T. 278 the Commissioner (Appeals) has no jurisdiction to remand the matter for fresh consideration by the original authority. We set aside the order impugned and allow the appeal.