MIL INDIA LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) This appeal at the instance of the assessee is against the order passed by the Commissioner (Appeals), dated 9 -4 -2003. The issue raised herein relates to the duty liability of the assessee on various bought out parts, which were cleared directly to the site of the customers, it is contended on behalf of the appellant that this issue is decided in its favour by the decisions of this Tribunal in Cimmco Birla Ltd. v. CCE, Jaipur reported in 2003 (156) E.L.T. 1019 (Tribunal) = 2003 (57) RLT 754 (CEGAT -Del.) and Fujitsu Indi Telecom Ltd. v. Commissioner of Central Excise, Chandigarh reported in 2003 (151) E.L.T. 354 (Tri. -Del.). It is not disputed before us that the duty is demanded in respect of bought out items, which were directly supplied by the assessee to the site of its customer M/s. Godrej Soaps Ltd. If that be so, the appellant is fully justified in relying on the above -mentioned decisions to contend that the duty liability is not sustainable.

(2.) The contention raised by the Revenue is that the assessee having not challenged the order, dated 22 -3 -2000 passed by the Commissioner (Appeals), remanding the matter for quantification of the duty liability, it is not open to the appellant to put forward the above -mentioned contention in the present appeal. It is true that in the order, dated 22 -3 -2000 the Commissioner (Appeals) had held that the value of bought out item was includible for the value of the manufactured goods. It is also true that the above order was not challenged by the assessee before this Tribunal. But the contention raised by the appellant before us is that since the entire matter is open before a higher authority, namely, Tribunal it is open t6 the assessee to take up the contention regarding the dutiability of the bought out items. In support of the above contention they placed reliance on the decision of the Supreme Court in Collector of Central Excise, Indore v. Hindustan Lever Ltd. [2000 (120) E.L.T. 3 (S.C.) and also on a decision of this Tribunal in Kothari and Company v. Collector of Customs [1989 (40) E.L.T. 155 (Tri.).]

(3.) We find merit in the above contention raised by the appellant. In M/s. Hindustan Lever Ltd., Supreme Court following its earlier decision in Jasraj Inder Singh v. Hemraj Multanchand (1977) 2 SCC (155) took the view that "a finding in a remand order cannot bind a higher Court when it hears the matter in appeal." In the case of Uma Laminated Products Pvt. Ltd. v. CCE, [1989 (40) E.L.T. 152 (T)], this Tribunal followed the decision of the Supreme Court in Jasraj Inder Singh v. Hemraj Multanchand and held as follows : -