TMI Blog2007 (3) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating authority is entitled to move the Tribunal in appeal. Section 35B indicates that the decision of order passed by the Commissioner (A) shall be treated as an order of an adjudicating authority. In the circumstances the High Court had erred in holding that the assessee was not entitled to agitate the question of dutiability in appeal before the Tribunal. - After considering the fact authority allowed the appeal partly - Civil Appeal No. 6988 of 2005, - - - Dated:- 1-3-2007 - [Judgment per : S.H. Kapadia, J.]. - The short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishnan Associates Pvt. Ltd. On 23-5-1997 a show cause notice was issued by the department to the appellants demanding duty on the various bought out items supplied directly to the site of M/s. Godrej Soaps Ltd. and M/s. Galaxy Surfactants Ltd. The demand was for the period April 1996 to March 1997. By a corrigendum dated 6-6-1997 the period was reduced to November 1996 to March 1997 (6 months). However, the duty amount was not correspondingly reduced. In reply the appellants contended that no duty was payable on various bought out items which were directly sent to the site. In the alternative they submitted that maximum duty payable, if any, would be Rs. 23,21,500 since the period was restricted to six months. By order dated 1-5-1999 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 the matter was carried in appeal by the appellants to the Tribunal. By judgment and order dated 3-10-2003 the Tribunal held that no duty was payable on the bought out items. The Tribunal further held that the appellants were entitled to raise the issue of dutiability of bought out items even though in the earlier round of litigation the appellants did not challenge the order of the Commissioner (A) dated 22-3-2000, on merits. The Tribunal concluded that the department was not entitled to add the value of the bought out items in the assessable value of the goods manufactured by the appellant. Accordingly, the Tribunal allowed the appeal. Aggrieved by the decision of the Tribunal the department preferred Central Excise Appeal No. 28 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o appear before the adjudicating authority and submit contentions on quantification of duty liability. In the present matter in the second round the appellant appeared before the adjudicating authority and pointed out in the alternative that the duty demanded from the appellants at the rate of Rs. 94,03,500 was erroneous as the appellants were entitled to the benefit of Modvat credit. From this it cannot be said that the question of excisability or dutiability had become final. The conclusion of the Commissioner (A) in his order dated 22-3-2000 was not binding on the Tribunal. Further one needs to understand the concept of assessment. An order of assessment under the taxing law does not become final before the adjudicating authority in ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We do not wish to remand the matter. This matter has undertaken a chequered history. In the present case vide order dated 9-4-2003 the Commissioner (A) held that the assessee had failed to produce evidence regarding its entitlement for the Modvat credit. However the fact remains that even if the bought out items were dutiable, the department was still required to give the benefit of Modvat credit. At this stage we may note that the appellants had a composite contract with M/s. Godrej Soaps Ltd. and M/s. Galaxy Surfactants Limited under which the appellants not only agreed to supply the equipments to M/s. Godrej Soaps Ltd. and M/s. Galaxy Surfactants Ltd., they also agreed to provide data/information in the format of drawings, diagrams, char ..... X X X X Extracts X X X X X X X X Extracts X X X X
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