TMI Blog2014 (7) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... g part in adjudication proceeding. Therefore, the impugned order is set aside and the matter is remanded back to the adjudicating authority for a de novo consideration of the matter, after giving a reasonable opportunity to the appellant to make their submissions and a hearing in person. The appellant is directed to cooperate with the adjudicating authority to speed up the adjudication process within a reasonable period, considering the amount of Revenue involved - Matter remanded back - Decided in favour of assessee. - E/41312/2013-DB - - - Dated:- 28-1-2014 - Pradip Kumar Das and Mathew John, JJ. For the Appellant : Mr Joseph Vellapalli, Sr. Counsel and Mr Vipin Kumar Jain, Adv. For the Respondent : Mr N Rajagopalan, Sp. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d using Cenvat credit on Anode Slime, containing precious metal compounds, exported under various consignments were paid in cash to the applicant under five separate orders of Deputy Commissioner. Later, Revenue was of the view that the goods exported were in fact, exempted under Notification No.5/2006-CE, dated 01.03.2006 by entry at S.No.22 and, therefore, they could not have paid Excise Duty on such product and claimed rebate of such excise duty in view of provisions under section 5A(1A) of Central Excise Act. Therefore, Revenue considered it as a case of unauthorized payment of Excise Duty for encashing Cenvat credit of countervailing duty and SAD paid on raw material. Revenue issued Show Cause Notice for recovery of such rebate paid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as quickly as they had encashed it through the rebate mode. Further, the arguments on merits which the appellant submitted were considered by us and we came to the view that this is not a matter warranting pre-deposit against an ex-parte order where the arguments of the appellant has not been before the adjudicating authority. 3. The essence of the argument of the appellant is that the goods are classifiable under heading No.71 12 99 90 of Central Excise Tariff. The whole dispute is only whether the goods are exempted under Notification No.5/2006-CE, dated 01.03.2006 by entry at S.No.22. This entry exempts goods falling under headings 71.05 or 71.12 of the following description: Dust and powder of previous and semi-prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a few copies of invoices under which the Anode Slime was cleared from Silvassa to Tuticorin by classifying the product under heading 2620.30. 90. He submitted that the processes done at Tuticorin on the Anode Waste received from Silvassa is only for the purpose of making the waste suitable for extraction of precious metals like Gold and Silver and, therefore, the process done on the anode waste received in Tuticorin is for extracting gold and silver and therefore the product manufactured and exported will fall within the description of the goods as mentioned in the notification. He relies on the write-up about the process given by assesse which is annexed to the impugned order as Annexure-I. It is stated in the write up that the objective o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the correct classification which is adopted at Tuticorin. 7. We have considered the submissions of both sides. We find that this is an issue which needs to be adjudicated after giving due consideration to the submissions of the appellants, if they wish to make any submission. We consider that their omission to make submission in the past was a matter of bona fide mistake on account of their expectation that the controversy would get sorted out through the intervention of CBEC. In ,the facts and circumstances of the case we do not want to penalize them at this stage for the default in filing reply and taking part in adjudication proceeding. Therefore, the impugned order is set aside and the matter is remanded back to the adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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