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TMI Blog2015 (10) TMI 2443X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.06.2013 passed by the Dy. Commissioner of Customs (SVB), Chennai and remanded the matter to DC (SVB) to revisit the issue afresh to pass necessary orders in denovo on determination of value on the imports made from related overseas firm. While remanding the case, the Commissioner (Appeals) has also directed the appellant to pay EDD at the equivalent of 5% of the invoice value and also directed the DC (SVB) to assess the bills of entry provisionally till the issue of fresh orders. Therfore, the appellants appeal is limited only to the impugned order relating to 5% of EDD. This Tribunal vide miscellaneous order No. 41077-41078/2015 dated 14.08.2015, granted interim stay against the payment of 5% EDD till the disposal of the stay petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her hand, the Ld. AR relied on the decision of the Tribunal in the case of Doosan Infracore India Pvt. Ltd. Vs. CC, Chennai vide miscellaneous order No. 41154/2015 dated 01.09.2015 and submits that as per the Boards Circular No. 11/2001 dated 23.02.2001 only 1% of extra duty deposit has been ordered till finalisation of provisional assessment. 5. After hearing both the sides, we find that the lower appellate authority in the impugned order set aside the OIO passed by the DC (SVB) and remanded the matter to the adjudicating authority to pass fresh orders for examining the case afresh on merits. The Commissioner (Appeals) has also directed the appellant to pay EDD at the equivalent of 5% of the invoice value till the issue of fresh orders a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deciding the issue. Therefore, this Court, deleting only that portion of the order directing the petitioner to pay EDD equivalent to 5% of the assessable value, directs the adjudicating authority to determine the issue after giving reasonable opportunity to the petitioner. The Hon'ble High Court Order in the case of National Oxygen Ltd. (supra) is reproduced below:- "16.The Tribunal by an elaborate order after discussing the issues raised before it recorded a finding that the appeal before it was a fit case for remitting back to the original authority. The basis for recording such a finding is also stated as that the order appealed against before it was not a speaking order; that it has not answered the plea raised by the appellant; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " The above Hon'ble High Court Orders squarely applies to the facts of the present case as in this case the lower appellate authority has not decided the issue on merits but decided to remand the matter to the lower authority. While doing so, he has put the precondition of 5% EDD till the issue of fresh orders by the adjudicating authority. This amounts to imposing precondition which will prejudice the mind of adjudicating authority. The Ld. AR relying on the Tribunals decision in the case Doosan Infracore India Pvt. Ltd. (supra) is not relevant to the facts of the present case, as the said order is only an interim order on different facts, where the Commissioner (Appeals) has decided the case on merits. 6. By respectfully following the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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