INDIAN ALUMINIUM CO. LTD. Vs. CCE

JUDGEMENT

(1.) THIS appeal arises from Order -in -Original No. 11/2002 dtd. 6.8.2002 by which the Commissioner has confirmed duties without granting benefit of moisture loss from the weight in respect of alumina hydrate manufactured by the appellants. He has also imposed penalty in the matter. It is the contention of the appellants that weight of the moisture cannot be taken for assessment and for levy of duty. It is their contention that the moisture content gets evaporated and only the weight of the alumina hydrate is required to be taken for the purpose of assessment and valuation and for confirmation of duties. However, this contention has been rejected by the Commissioner. He has held that the total weight of the alumina hydrate is required to be taken and there is no question of deduction of moisture content. Ld. Advocate submits that the issue is no longer res integra and the matter has been considered in their own case and it has been held that the weight of the moisture content is not required to be taken into consideration while computing the duty. In this regard, he relied on the judgment rendered in the case of Indian aluminium Co. Ltd. v. CCE, Belgaum [2003 (57) RLT 788] :, 2004 (113) ECR 299 (T) and that of Exide Industries Ltd. v. CCE, Chennai [ : 2004 (164) ELT 46] :, 2004 (113) ECR 364 (T)]. It is his further submission that the Commissioner (Appeals), Mangalore has allowed their appeals on this very question by his Order -in -Appeal No. 245/2003 -CE dtd. 29.7.2003 and Order -in -Original No. 255/2003 -CE dtd. 14.8.2003. He also refers to order -in -original No. 88/2003(JC) dated 19.11.2003 passed by the joint Commissioner of Central Excise. The Counsel has filed copies of all these judgments and prayed for allowing of the appeal as the issue is no longer res integra and the Revenue has accepted the orders passed by the Commissioner (Appeals) and Joint Commissioner in the matter.

(2.) LD . SDR on perusal of the judgments fairly contended that the issue is covered by the judgments cited. However, he would like to reiterate the findings given by the Commissioner. On a careful consideration, we notice that the issue is no longer res integra and the Tribunal in the appellants' own case has clearly held that the weight of the moisture content is not required to be added in the assessable value. The finding recorded by the Tribunal in the case of Indian Aluminium Co. Ltd. (supra) has been followed in the case of Exide Industries Ltd. (supra). These judgments have been taken note of by the Commissioner (Appeals) in the above cited Order -in -Appeals and the demands have been dropped against the appellants. In view of the Department not contesting the Commissioner (Appeals) Order in favour of the party and in the light of the above noted Tribunal judgments, the impugned order is not legal and proper and the same is liable to be set aside. Appeal is allowed.