1. Since the prima facie ground canvassed by Shri Kumar, the learned advocate calls for disposal of the appeal on the short ground and the matter calls for a remand, with the consent of both sides, we have decided to dispose of the appeal itself. For this limited purpose the following facts are recorded : 2. The appellants are engaged in the manufacture of TV sets and other consumer electronic items. A show cause notice was issued alleging duty evasion and irregular availment of Modvat credit by removal of inputs received, without payment of duty. The said show cause notice was adjudicated after observing all the principles of natural justice and no dispute is being raised about that. However, during the adjudication proceedings, certain work-sheets have been given by the appellants alleging wrong calculation of the duty amount and the Collector have agreed to take it on record but instead of getting the reconciliation done by himself for accepting the worksheets submitted by the appellants or otherwise, he has delegated the function to the investigating agency and thereby the demand has not been quantified under Section 11A by the Collector himself. This is the main prima facie grievance of Shri Kumar on behalf of the appellants. He particularly took us through Para 14 of his findings and also para 16(1) of the order. On a perusal of the aforesaid paras, we find that the Collector has asked the investigating officer to verify the calculations and the counter work-sheets prepared by the appellants and accordingly the duty demand shall be worked out by the Investigating officer after examining each of their claim keeping in mind his findings given in the case. In terms of this direction, he has passed the order as below :- "The Assistant Collector, Central Excise (Prev.) Bombay-I is hereby directed to examine the claim of Nihon on the basis of the counter worksheets to be produced by Nihon and as mentioned in their letter dated 23-3-1992 and also on the basis of the guidelines given by me in my findings and to re-determine the duty demanded in para 12(i) and (ii) of the Notice. In doing so, the Asstt. Collector shall make available all the preliminary worksheets and worksheets so prepared and the documents relied on by them in arriving at the duty demand.
It is also made clear that this exercise shall be completed by the Asstt. Collector within a period of 30 days from the receipt of this Order. It shall also be the endeavour of Nihon to extend all co-operation to the Asstt. Collector (Prev.) and his staff wherever necessary to facilitate the verification and to examine their claim.
The duty demand so worked out and informed to Nihon is confirmed by me under Section 11A of the CESA, 1944." 3. From the above, it is clear that the duty amount, which is yet to be worked out after reconciliation by the Investigating officer has been confirmed by the Collector in advance under Section 11A of the Central Excise Act. Such an order cannot be legally sustained. Hence the matter calls for a remand back to the Collector for the limited purpose of taking into account the work-sheets prepared by the appellants and reconciling those figures with the help of his departmental officers and after hearing the appellant, quantifying the exact duty amount to be paid by the appellants, so that such a demand could be confirmed in accordance with the law. In view of this legal position emerging from the order of the Collector, we have no other alternative but to set aside the order and remand the case back to him for quantifying the demand in accordance with the aforesaid guidelines and pass orders in accordance with law. Since the quantum of penalty also depends upon the quantum of duty sought to be quantified, this also has to be re-determined after arriving at the quantum of demand by the Collector.
4. The appeal is allowed by way of remand in the above terms and the stay application does not survive for separate consideration.