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TMI Blog2006 (10) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been manufactured by them and cleared without payment of duty during the period 1-3-94 to 17-1-95. The above demand of duty was quantified on the basis of the assessable value which was determined by the Commissioner without allowing deduction of Excise Duty from invoice price of the goods under Section 4(4)(d)(ii) of the Central Excise Act. The Commissioner, however, held that M/s. JMPL were eligible for Modvat credit of the duty paid on the inputs used in the manufacture of the said final products. Quantification of this credit was left to be done by the divisional Asst. Commissioner in accordance with the relevant Rules. In the above order, learned Commissioner also confiscated certain quantities of Aluminium circles and vessels unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order, M/s. JMPL filed an appeal with the Commissioner (Appeals) and that appeal is still pending. The department also filed an appeal with the Commissioner (Appeals) challenging the grant of Modvat credit to M/s. JMPL by the AC and that appeal also is pending. The department also filed two appeals, Nos. E/1352 & 1353/97 before this Tribunal against the grant of Modvat credit to M/s. JMPL by the Commissioner and these two appeals were disposed of by this Bench as per Final Order No. 1014-1015/2001 dt. 29-6-2001 remanding the case to the Asst. Commissioner for considering the Revenue's objections before quantifying the Modvat credit admissible to the assessee. It appears that the present appeals were not considered by this Bench while pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequence of this finding of ours is that the appeals filed by the assessee and the department before the Commissioner (Appeals) against the AC's order dated 17-9-96 are not maintainable. 4. Coming back to the present appeals, we have found force in the case of the appellants that the Commissioner ought to have finalized the demand of duty. The Commissioner, being adjudicating authority, did not have any power of remand and hence it was erroneous on his part to direct the AC to quantify the Modvat credit admissible to the assessee. The Commissioner's direction to the AC reads thus - The quantum and the extent of Modvat credit admissible to them would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement is liable to be deducted from the invoice value of the goods for the purpose of determination of its assessable value. 6. Again, it was not correct on the part of the Commissioner to impose a penalty on the assessee under Rule 173Q without finalizing the demand of duty inasmuch as the extent of duty evasion by the assessee had a bearing on their penal liability. This finding is more or less applicable to the penalty imposed on M/s. CVPL also. 7. In the result, bearing in mind the letter and spirit of the final order dated 29-6-2001 passed by this Bench, and, with the consent of both sides, we set aside the Commissioner's order and direct him to pass a fresh speaking order in adjudication of the SCN after taking into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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