Full Judgment
2. The Revenue has come up in appeal, and challenged the validity f impugned order of the Commissioner (Appeals) on the ground that the respondents as 100% EOU, cleared the cotton soft waste in domestic tariff area during the period in question, without payment of duty when the duty was chargeable in terms of the Central Excise Act. Ld. SDR has reiterated the grounds of appeal during the course of argument, while assailing the impugned order of Commissioner (Appeals). He has contended that for the disputed period, the respondents were liable to the duty on cotton soft waste as entry pursuant to the dutiability of the soft cotton waste, was introduced for the first time in Chapter 52 of the CETA and the provisions of Provisional Collection of Taxes Act were attracted.
3. On the other hand, Id. Counsel for the respondents has only, while refuting this contention of the Id. SDR, placed reliance on the ratio of the law laid down by the Apex Court in Pieco Electronics and Electricals vs. CCE Pune 4. We have heard both sides and gone through the impugned order of the Commissioner (Appeals).
5. Ld. Additional Commissioner in order-in-original while confirming the duty demand and imposing the penalty on the respondents for having cleared the soft cotton yarn without payment of duty during the period in question had referred to applicability of the provisions of Provisional Collection of Taxes Act and determined the rate of duty @ 12.5% on the basis of Notification No. 2/95 dated 4.1.95 read with Section 12 of the Customs Act. However, the Commissioner (Appeals) while reversing his order, has not made any reference to the non applicability of that Notification and Section 12 of the Customs Act.
He has set aside the duty demand and the penalty on the simple ground that the provisions of Provisional Collection of Taxes Act were not applicable and the duty became payable on the soft cotton waste by the respondent only from the date of enactment of Finance Bill of 1995. But we are unable to agree with the view taken by him for want of sufficient reasons recorded by him in the order. When he has observed that in Budget of 1995, new sub-heading 5202, in the Schedule of the CETA for the cotton waste was introduced for the first time, then how and under that circumstances the provisions of Provisional Collection of Taxes Act were not attracted, the Commissioner (Appeals) has not been explained in the impugned order. In a case of introduction of new provision in the tariff, apparently, the provisions of said Act would stand attracted for collection of duty from the date of introduction of the Finance Bill 1995 which was 16.3.95. Ld. Counsel has no doubt referred to the Final Order No. 932-933/99-D of the Tribunal passed in the case of M/s. Seawell & Filters Co. vs Commissioner of Central Excise Indore but that order is not of any help to the respondents in this case as in that case the Bench had taken the view by relying upon the ratio of law laid down by the Apex Court in Pieco Electronics and Electrodes Ltd. (supra) that mere shifting of the goods from one tariff item to another was not covered by the provisions of provisional Collection of Taxes Act, But such is not the situation in the case in hand.
6. Since the order of the Commissioner (Appeals) is ambiguous, and not clear and he has reversed the order-in-original of the Additional Commissioner without giving sufficient reasons. We find it fit case for remand in the light of the discussions made above for de novo decision, to Commissioner (Appeals_. He will, decide the case after hearing both the sides and will take into consideration any notification or any law relied upon by both the sides.
7. Therefore, the impugned order of the Commissioner (Appeals) is set aside and the case is sent back to him for fresh decisions in the light of observations made above. The appeal of the Revenue accordingly stands allowed by way of remand.