AMBAJOGAI SSK LTD. Vs. COMMISSIONER OF CENTRAL EXCISE,

JUDGEMENT

(1.) WE dispense with the requirement of pre -deposit of duty of Rs. 2,23,726/ - and proceed to hear the appeal itself with the consent of both the sides as the issue lies within a very narrow compass.

(2.) THE duty demand was confirmed on the basis of the cost of manufacture of molasses as opined by Chief Sugar Technologist VDS Institute in his letter dated 31.01.95. The appellant preferred an appeal to the Commissioner(Appeals) along with application for waiver of pre -deposit. An interim order was passed directing the appellant to furnish a bond for the full amount of duty back by an equivalent amount of Bank Guarantee. The appellant submits that although the order was issued on 28.2.01 to the appellant C/o their counsel, it was actually issued only on 3.4.01 and received by the counsel on 9.4.01. However, even prior to the receipt of the interim order, the Appellate Authority by his order dated 30.3.01 received by the appellant on 17.5.01 dismissed the appeal for non compliance of the order dated 28.2.01 issued under Section 35F of Central Excise Act.

(3.) WE have perused the records. We also note that the issue in dispute has been decided by the Tribunal in favour of the assessee holding that when there is a price at the factory gate which is the normal price, that should be adopted normally. One such order is that in the case of The Agasti Shakari Shakhar Karkhana Ltd v. CCE and C, Aurangabad Order No. C -II/446 -47 dt. 7.3.01. The Tribunal set aside the impugned order of the lower authorities and allowed the appal of the assessee. Being satisfied with the submission of the Id. counsel (which is borne out by the postal cover) that the stay order was received only in April, 2001 prior to which the Commissioner (Appeals) has already disposed of the appeal for non compliance and nothing that the issue is decided by the Tribunal, we set aside the impugned order and remand the case back to the Commissioner(Appeals) for fresh decision in the light of the Tribunal's decision cited supra, after extending reasonable opportunity of being heard to the appellant. The appeal is thus allowed by remand.