Judgment:
1. Shri K.K. Anand, learned Advocate, mentioned that the present appeal has been filed by M/s. Man Structurals Ltd. against the impugned Order rejecting the refund claim filed by them. He, further, mentioned that the appellants are engaged in the business of supplying materials for errection of steel structurals like high tention transmission tower, Sub-station structure, etc. for Electricity Board; that they process these materials out of duty paid M.S. Angles, Plates, Channels, etc.; that the process carried out by them does not amount to manufacture; that however, the Assistant Collector classified their product under Sub-heading 7308.20 of the Schedule to the Central Excise Tariff Act under Order-in-Original No. 24/90 dated 15.1.90 which was confirmed by the Collector (Appeals); that against Collector (Appeals) order they had filed an appeal before the Appellate Tribunal and the appeal No. is E/61/91-B; that simultaneoulsy they had filed the refund claim in respect of duty paid by them on material for transmission towers; that the Assistant Collector rejected their claim for refund of the duty on the ground that the dutiability and classification of the impugned product had been decided under Order No. 24/90 which was in operation.
The learned Advocate also submitted that the Tribunal had decided the matter regarding excisability of the structurals in the case of Elecon Engg. Co.; that the Larger Bench of the Supreme Court, after hearing various matters, has remanded the matters to the Tribunal for being heard and disposed of afresh in the case of CCE, Jaipur vs. Man Structurals Ltd., 2001 (44) RLT 113 (SC); that as the cause title of the case suggest the appeal filed by the present appellants has also been remanded by the Appellate Tribunal. He, therefore, requested that the present matter may be kept excisability of structurals in their case on merit. We also heard Miss Ananya Ray, learned SDR.2. The Supreme Court in the case of Man Structurals Ltd. (supra), who are the appellants in the present matter, has remanded the matter to the Tribunal to determine whether or not the structurals are excisable.
As the main issue about the excisability of the impugned product is pending decision in appeal before the Tribunal the present appeal regarding refund of duty paid in respect of such structurals cannot be decided. We are, however, of the view that the present appeal being the refund of the duty paid should go back to the Adjudicating authority who will decide the question of refund in the light of the decision taken on merit about the excisability of the structurals in question.
We, therefore, remand the matter to the Adjudicating authority with the direction that the matter may be decided after receipt of the decision of the Appellate Tribunal in the appellants' appeal regarding excisability of the structurals.