ARTOS BREWERIES LIMITED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal has been filed against adjudication order No. 13/2003 -04 dated 28.07.2003 passed by the Commissioner of Central Excise, Visakhapatnam. The issue involved is the excisability of the storage Stainless Steel Tanks installed in the premises of the appellant. The CEGAT, in its Final Order No. 1086/2002 dated 14.08.2002 remanded the issue to the Commissioner. Consequent to the remand order, the Commissioner has passed the impugned order in which he has demanded a total duty of Rs. 1,40,875/ - on the six tanks under Section 11A(1) of the Central Excise Act. Further, he has imposed a fine of Rs. 1 lakh in lieu of confiscation. He has also imposed a penalty of Rs. 5,000/ -. This order is under challenge by the appellants.

(2.) SHRI K.S. Ravi Shankar a/w Shri Anirudha, the learned Advocates appeared for the appellants and Shri Ganesh Havanur, the learned SDR for the Revenue.

(3.) THE learned Advocate brought to our notice that this issue is coming to the Tribunal for the third time. Originally, the order demanding duty on Stainless Steel Tanks was issued on 07.01.1993. The appellants approached the CEGAT. CEGAT, in its Final Order No. 1472/2000 dated 24.10.2000, remanded the matter to the original authority to decide the issue in the light of Expert opinion by an Engineer. Consequently, on the basis of the technical opinion, the Commissioner of Central Excise, Visakhapatnam passed an order dated 15.2.2002 wherein out of the 22 Steel tanks, he held that six tanks are excisable. He imposed a penalty of Rs. 5,000/ -. In the said order, the Commissioner did not quantify the duty. The appellants challenged the said order before the Tribunal. The Tribunal passed the Final Order No. 1086/2002 dated 14.08.2002 wherein the following direction was given. He is directed to quantify the duty amount as well as the redemption fine and pass an order in accordance with law on providing an opportunity to the party. The appellants challenged the merits of the case also before the Tribunal as can be seen from the first sentence in para 2 which is given below. It was brought to our notice that apart from the merits of the case, the duty has not been quantified by the Commissioner. The main grievance of the appellant is that in the impugned order, which was passed consequent to the CEGAT's remand order, the Commissioner has not at all dealt with the merits of the case. The learned Advocate took us through the technical opinion report dated 24.12.2001 to show that the six tanks are immovable property and cannot be held to be excisable in the light of various judicial decisions and Board Circular. The photograph of the tanks were also shown to the Bench. The learned Advocate relied on the following case -laws: