Holding

The Court held that the revenue failed to discharge the burden of proving that cold‑rolling constituted manufacture of a new excisable commodity and remitted the matters for fresh consideration of the three questions, setting aside the Tribunal’s orders.

Summary

Mis Steel Strips Ltd. manufactured cold rolled steel strips from hot rolled strips and claimed a refund of excise duty paid on the cold rolled strips. The revenue department rejected the claim, asserting that hot and cold rolled strips are distinct excisable commodities under separate tariff sub‑headings and that the appellant had passed on the duty to its buyers, invoking Section 11‑B of the Central Excise and Salt Act. The Tribunal held that the department had failed to produce any evidence that the cold‑rolling process amounted to a manufacture of a new commodity and remitted the matter to the Assistant Commissioner to determine whether the duty burden was passed on. The Supreme Court found that the record contained no evidence of manufacture, reiterated that the burden of proof lies on the revenue, and therefore set aside the Tribunal’s orders, remitting the appeals for fresh consideration of the three specific questions, including the validity of the show‑cause notice and the Section 11‑B issue.

Issues considered

Whether the excise authorities produced any evidence before the first adjudicating authority that cold rolled strips are the result of a manufacturing process undertaken by the respondent, or whether the Assistant Commissioner relied merely on personal knowledge or publications.
Whether the show‑cause notice issued to the respondent was defective for not expressly stating that the process resulted in a new product (cold rolled strips) distinct from hot rolled strips.
Whether the respondent has passed on the burden of excise duty to its buyers, to be decided under Section 11‑B of the Central Excise and Salt Act.

Legislation cited

Central Excise and Salt Act, 1944s. 11-B

Subjects

central exciserefund of dutymanufactureexcisable commoditySection 11-Bburden of proofshow cause noticeremandunjust enrichment

Judgment

A COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-II
v.
MIS STEEL STRIPS LTD. ETC. II
I

APRIL 22, 2003

B (S.N. VARIAVA AND B.P. SINGH, JJ.]

Excise Laws:

Central Excise and Salt Act, 1944-Section 11-B-Sub-heading
C 7211.51 and 72 !l.52-Cold rolled strips and hot rolled strips-Claimant
engaged in manufacturing cold rolled steel strips from hot rolled strips-
Claim for refund of excise duty--Tribunal allowing the claim-Department
holding that hot and cold rolled strips classified under different heads thus
distinct excisable commodities and they had discharged the burden
D establishing that new excisable commodity-cold rolled strips was the result
of process of manufacture undertaken by claimant-.-Claimant denying the
allegation-On appeals held-There are no clear material on records with
regard to manufacturing process undertaken by claimant giving rise to duty
liability-Thus appeals remitted back for fresh consideration.

E Respondent is engaged in manufacturing of cold rolled steel strips. It
paid excise duty and thereafter tiled application for refund of duty. Assistant
Commissioner issued notice to the respondent to prove beyond doubt that burden
of excise duty had not been passed on to the buyers. Thereafter, the Assistant
Commissioner rejected the claim. Respondents then tiled an appeal which was
F dismissed. Commissioner of Excise (Appeals) also rejected the claim. However,
the tribunal allowed the appeal holding that department failed to discharge the
burden that r~spondent unde11ook the process which resulted in manufacture
of new excisable commodity and remitted the matter to enable the respondent
to satisfy that they had not passed the burden of duty to their customers.

Q_ Respondent was also issued notice alleging clandestine removal of cold
rolled steel strips produced without payment of duty. Commissioner upholding
the allegation passed an order of recovery of duty, interest, and penalty. However, •.
the tribunal set aside the order holding that since no duty was payable on cold
rolled strips, there was no evasion of excise duty. Hence the present appeals.

H 852
I

~'

C.C.E. v. STEEL STRIPS LTD. 853
Appellant contended that hot rolled strips and cold rolled strips were A
classified under two distinct sub-headings under the amended tariff, thus were
two distinct excisable commodities; and that the Assistant Commissioner
concluded that the respondent undertook the process of manufacture which
resulted in the manufacture of cold rolled strips, a new excisable commodity
from hot rolled strips, also an excisable commodity, therefore, the tribunal
erred in holding that department had failed to discharge the burden cast upon B
them to establish that a new excisable commodity was the result of the process
of manufacture undertaken by the respondents.

Respondents contended that there was no material on record to establish
that the respondents undertook a process of manufacture which resulted in C
the manufacture of another excisable commodity; that the department had not
produced any evidence in this regard and the observations made by the Assistant
Commissioner are based either upon his own knowledge or knowledge derived
from text-books or publications, which were not relevant; that it is for the excise
authorities to lay such evidence in this behalf before the first adjudicating

- authority; and that the notice issued to the respondents was defective as it did D
not state the process undertaken by the respondents resultin!( in the
manufacture of a new product and the department cannot be permitted to go
beyond the facts stated in the notice.

Disposing of the appeals, the Court
E
HELO: I.I. Jn the order of the Assistant Commissioner there is a
reference to a process of manufacture undertaken by the respondents and there
is also some discussion about the manner in which the manufacture of cold
rolled strips takes place, but the order does not clarify whether any evidence
was led by the department to satisfy the adjudicating authority in this regard. F
The Tribunal on the other hand has observed that no evidence has been brought
on record to show that such process amounted to manufacture so as to give
rise to duty liability. In this state of the record, matter is remitted for fresh
consideration on the basis of material on record and to consider and record
findings on the following questions and dispose of the matters before them in G
accordance with law:

I. Whether the excise authorities have led any evidence before the
first adjudicating authority on the question as to whether cold
rolled strips arc the result of a process of manufacture undertaken
I by the respondents, or whether the material referred to in the H
854 SUPREME COURT REPORTS [2003] 3 S.C.R.

A order of the Assistant Commissioner is based upon his own
personal knowledge or is based on authoritative publications?
The burden is on the department to pron that the process of
manufacture resulted in emergence of a commercially distinct
commodity.

B 2. Whether the show cause notice issued to the respondents was
defective inasmuch as it did not state, apart from referring to the
two sub-headings under the amended Central Excise Ta~iff, that
there was manufacture of a new product, namely cold rolled
strips from hot rolled strips?

C 3. Whether the respondent has passed on the duty of excise to its
buyers is remitted to the Assistant Commissioner for
consideration and finding having regard to Section 11-B of the
Act.1860-C, D; 862-B-EI

1.2. With regard to the question of passing the burden of excise duty on
D buyers it is only appropriate that the Assistant Commissioner should first
record a finding on that question. If the finding is against the respondents,
their claim applications shall have to be rejected. This is subject to the order
that may be passed in appeal by the appellate authority and ultimately by the
Tribunal. Only if it is ultimately found that the respondents have not passed
on the burden of excise duty to their buyers, the other questions which are
E remitted to the trlbunal may require consideration and tribunal will dispose of
the matters. Therefore, it is djrected that in the first instance those appeals
shall stand remitted to the Assistant Commissioner to hear the parties and
decide only the question of unjust enrichment having regard to the provisions
of Section 11-B of the Act. It will be open to the respondents to challenge the
F finding if it goes against them before the appellate authority and/or before the
Tribunal. If no appeal is preferred against an adverse finding by the Assistant
Commissioner, that will be an end of the matter and no further consideration
by the Tribunal will be necessary.1862-F-H; 863-AI

Collector of Central Excise, Chandigarh v. Steel Strips ltd., (1995) 77
G E.L.T. 248 (S.C.); Hyderabad Industries ltd. v. Union ofIndia, (1999) 108 ELT
321 (S.C.); Hyderabad Industries ltd. v. Union of India, (1995)78 E.T.T. 641
(S.C.); Prabhat Sound Studios v. Additional Collector of Central Excise, (1996)
88 E.L.T. 635 (S.C.) and Lal Woolen and Silk Mills (P) ltd. Amritsar v.
Collector of Central Excise, Chandigarh, f 19991 4 SCC 466, referred to.
\,
H CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7165 of2000.
C.C.E. v. STEEL STRIPS LTD. [B.P. SINGH.J.) 855
From the Judgment and Order dated 29.6.2000 of the Central Excise and A
Gold (Control) Appellate Tribunal, New Delhi in A. No. E/36/99-B in F.0.No.
1037 of2000-B.

WITH

C.A. Nos. 7706-7711, 439-442 of2002. B
Raju Ramachandran, Additional Solicitor General, N.K. Bajpai, Rajiv
Nanda and B. Krishna Prasad for the Appellant.

V. Lakshikumaran, M.P. Devnath, Alok, Ms. Minakshi Vij and V.
Balachandran for the Respondents. C
The Judgment of the Court was delivered by

B.P. SINGH, J. This batch of appeals involve common questions and,
therefore, they have been heard together and are being disposed of by a
common judgment. D
The revenue is the appellant in all the appeals impugning the order
passed by the Customs, Excise and Gold (Control) Appellate Tribunal in the
appeals preferred by the respective respondents.

In C.A. No. 7165 of2000 the Commissioner of Central Excise, Chandigarh- E
II, has impugned the order of the Customs, Excise and Gold (Control) Appellate
Tirbunal (hereinafter refen-ed to as the Tribunal) dated 29th June, 2000 whereby
the Tribunal while upholding the plea of the respondent that the process of
cold rolling of steel strips from hot rolled strips does not amount to manufacture
of a new excisable commodity, remitted the matter to the Assistant
Commissioner so that the respondent may be able to satisfy the Assistant F
Commissioner on the question whether they had not passed on the burden
of duty to their customers.

In C.A. Nos. 7706-7711 of2002 in which the respondent is the same as
in C.A. No. 7165 of2000, the Tribunal following its earlier decision dated 29th G
June, 2000 (which is impugned in C.A. No. 7165 of 2000) allowed the appeal
preferred by the respondent and held that the revenue had failed to discharge
the burden of showing that the manufacture had taken place by the process
of cold rolling of steel strips from hot rolled strips. However, it remitted the
matter to the Assistant Commissioner to decide the question as to whether
it had not passed on the incidence of duty to the customers. H
856 SUPREME COURT REPORTS [2003) 3 S.C.R.

A In C.A. Nos. 439-442 of2000 the Tribunal following its earlier decision
in the case of Steel Strips Ltd. (impugned in C.A. No. 7165 of2000) held that
cold rolled strips produced out of duty paid hot rolled steel strips do not
undergo a process of manufacture and hence are not chargeable to excise
duty.

B We may at the threshold observe that while in C.A. No. 7165 of 2000
and C.A. Nos. 7706-7711 of2002 the dispute arose when the respondent filed
applications for refund of excess excise duty paid, in C.A. Nos. 439-442 of
2002 the question arose in the context of a show cause notice issued to the
respondent alleging clandestine removal of cold rolled steel strips produced
C out of duty paid hot rolled steel strips without payment of duty. The
Commissioner found that there had been clandestine removal of cold rolled
strips without payment of excise duty and, therefore, ordered recovery of
duty, interest, penalty etc. The Tribunal on appeal set aside the order of the
Commissioner, Central Excise (Adjudication), Delhi holding that since no duty
was payable on cold rolled strips, there was no evasion of excise duty.
D
The representative facts may be taken from C.A. No. 7165 of 2000.

Mis. Steel Strips ltd., respondent herein, held Central Excise Registration
"'·
for the manufacture of cold rolled steel strips. It had paid central excise duty
on cold rolled steel strips made from hot rolled steel strips between the period
E 19.6.1996 to 29.6.1996 amounting to Rs. 42,07,977. lt filed an application for
refund of the excise duty so paid on cold rolled steel strips relying upon the
decision of this Court in its own case reported in 1995 (77) E.L.T. 248 (S.C.):
Collector of Central Excise, Chandigarh v. Steel Strips ltd According to the
respondent this Court held in the aforesaid decision that hot rolled strips
F upon which excise duty had admittedly been paid did not undergo the process
of manufacture at the hands of the assessee which resulted in the production
of cold rolled, strips and, therefore, no excise duty was payable on such cold
rolled strips. Consequently it claimed refund of the excise duty paid on cold
rolled strips. The application for refund was examined by the department and
ultimately a show cause notice was issued by the Assistant Commissioner,
G Central Excise Division, Patiala, on August 14, 1996 calling upon the respondent
to show cause why the refund application should not be rejected for the
reasons stated in the notice. In the show cause notice it was stated that the
judgment of the Supreme Court referred to in the application for refund related
to the period prior to 28th February, 1986 when the old Central Excise Tariff
-
H was applicable which classified under Tariff Item 26AA all kinds of strips
C.C.E. v. STEEL STRIPS LTD. [B.P. SINGH, J.] 857
without making any distinction between cold rolled and hot rolled strips. The A
tariff had undergone a change and the Central Excise Tariff as applicable after
28th February, 1986 classified hot rolled strips and cold rolled strips separately
as they were distinguishable from each other. Separate sub-headings have
been provided and while hot rolled strips come under sub-heading 7211.52
cold rolled strips come under sub-heading 7211.51. The notice further stated
that the respondent had passed on the burden of the excise duty to the B
buyers and, therefore, under Section 11-B of the Central Excise and Salt Act,
1994, (hereinafter referred to as the Act) the respondent was required to prove
beyond doubt that the burden of excise duty had not been passed on to the
buyers so as to entitle it to claim refund.

In its reply dated 24th August, 1996 the respondent denied that the
c
excise duty had been correctly paid and, therefore, they were not entitled to
claim refund. They reiterated their claim for refund and prayed for further time
to furnish a detailed explanation. However, it appears from the order of the
Assistant Commissioner that no further explanation was furnished by the
respondent. D
The Assistant Commissioner by order dated 10th January, 1997 rejected
the claim of the respondent following an order passed by the Assistant
Commissioner, Central Excise Division, Patiala in a case of the respondent. A
similar claim for refund on the same ground was rejected after considering the
judgment of the Supreme Court on which reliance was placed by the E
respondent. The order of the Assistant Commissioner on which reliance had
been placed has been annexed as Annexure P-111. He held that on account
of the amendment of the Central Excise Tariff with effect from 28th February,
1986, hot rolled strips and cold rolled strips must be treated as two separate
items which have been dealt with separately in the tariff. Under the old tariff p
all strips were classified under tariff item No. 26AA, but that the legal position
having changed after the amendment of the tariff, the two manufactured
commodities were distinguishable and different from each other being covered
by two separate sub-headings and, therefore, excise duty was payable on the
cold rolled strips as well as on hot rolled strips. It was further held in the facts
of that case that since the claimant had passed on the burden of excise duty G
to the buyers it was not entitled to claim refund under Section 11-B of the
Act. The Assistant Commissioner, therefore, held that the judgment of the
Supreme Court, which was in respect of period prior to 28th February, 1986
was not applicable to the claim for refund which pertained to the period after
the amendment of the tariff. In the said order the Assistant Commissioner also H
858 SUPREME COURT REPORTS [2003] 3 S.C.R.

A observed that cold rolled strips are a different product from hot rolled strips.
There is difference in price on account of the fact that properties of the
material completely gets changed after cold rolling. It observed--

"It is evident from the examination of manufacturing process of cold
rolled strips and their use. Cold rolled strips are being manufactured
B out of hot rolled strips by the process as mentioned below."

The Assistant Commissioner then went on to describe the process of
manufacture and the use to which cold rolled strips are put. He came to the
conclusion that cold rolled strips are entirely different commodity from hot
rolled strips and that is why different sub-headings were provided in the
C Central Excise Tariff for hot rolled strips and cold rolled strips.

It is not clear from the order of the Assistant Commissioner whether any
evidence was produced by the respondent in that case regarding the process
of manufacturing undertaken by the claimant or whether the observations
D made in the order were based on authoritative publications or on his personal
knowledge.

The respondent preferred an appeal before the Commissioner of Excise
(Appeals). The said appeal was dismissed by the Commissioner who fully
agreed with the reasoning of the Assistant Commissioner and also held that
E the judgment of the Supreme Court referred to in the claim application was
not relevant in view of the introduction of the new tariff which classified
separately hot rolled and cold rolled strips. It also agreed with the finding of
the Assistant Commissioner that lhe application for refund deserved to be
rejected also on the ground of unjust enrichment as the burden of duty had
been passed on to the buyers.
F
We may observe that though the Commissioner of Excise (Appeals)
rejected the claim also on the ground of the respondent having passed on
the burden of duty to the buyers, the Assistant Commissioner did not record
any finding in this case on that question, having regard to the provision of
Section 11-B of the Act.
G
The respondent preferred an appeal before the Tribunal impugning the
order passed by the Commissioner of Excise (Appeals). Relying upon the
judgment of this Court in 1995 (77) E.L.T. 248 SC: Collector ofCentral Etcise,
Chandigarh v. Steel Strips ltd. (supra). The Tribunal held that the department
H was required to adduce evidence that the process undertaken by the
C.C.E. v. STEEL STRIPS LTD. [B.P. SINGH. J.] 859
respondent resulting in the production of cold rolled steel strips from hot A
rolled strips amounted to manufacturer. No evidence had been brought on
record to show that such process amounted to manufacture giving rise to
duty liability. It further held that the mere fact that hot rolled steel strips and
cold rolled strips fall under two different sub-heading under the same chapter
was not sufficient to conclude that the process of cold rolling from hot rolled
strips amounted to manufacture. The burden was cast upon the revenue to B
show that the manufacture had taken place but the department had failed to
discharge that burden. On these findings the Tribunal held that the refund
claim was admissible on merits.

However, it remitted the matter to the Assistant Commissioner to enable C
the respondent to satisfy him that they had not passed on the burden of duty
to their customers as required by Section 11-B of the Act.

In the connected appeals this order of the Tribunal has been noticed
and followed.
D
Learned counsel for the appellant submitted before us that the fact that
hot rolled strips and cold rolled strips were classified under two distinct sub-
heading under the amended tariff was itself sufficient to hold that they were
two di~tinct excisable commodities. In any event it was submitted, the Assistant
Commissioner considered the material on record and came to the conclusion
that the respondent undertook the process of manufacture which resulted in E
the manufacture of cold rolled strips, a new excisable commodity, from hot
rolled strips, also an excisable commodity. Therefore, the Tribunal erred in
holding that the department had failed to discharge the burden cast upon it
to establish that a new excisable commodity was the result of the process of
manufacture undertaken by the respondents.
F
On the other hand learned counsel for the respondents submitted that
there was no material whatsoever on record to establish that the respondents
undertook a process of manufacture, which resulted in the manufacture of
another excisable commodity. The department had not produced any evidence
in this regard and the observations made by the Assistant Commissioner it G
its order are based either upon his own knowledge or knowledge derived from
text-books or publications, which were not relevant. Relying upon the earlier
decision in Steel Strips (supra) it was submitted that in case where the excise
authorities contend that an aiticle is the result of the process of manufacture
and it is commercially distinct and known as such, it is for the excise authorities
to lay evidence in this behalf before the first adjudicating authority regardless H
860 SUPREME COURT REPORTS [2003) 3 S.C.R.

A of the fact that he is an officer of the excise department. There should,
ordinarily, be no difficulty in establishing that the article is the result of a
process of manufacture; in the event of difficulty, it would be open to the
excise authorities to seek a direction requiring the assessee to set out in
writing what is does to obtain the article. Failure to lay the requisite evidence
cannot be made up by reference to authoritative publications.
B
In the instant case we find that while in the order of the Assistant
Commissioner there is a reference to a process of manufacture undertaken by
the respondents and there is also some discussion about the manner in which
the manufacture of cold rolled strips take place, but the order is not clean as
C to whether any evidence was led by the department to satisfy the adjudicating
authority on this issue. The Tribunal on the other hand has observed that
no evidence has been brought on record to show that such process amounted
to manufacture so a to give rise to duty liability. In this state of the record
placed before us, it is not possible for this Court to express its considered
opinion on this issue and it has, therefore, become "necessary to remit this
D matter for fresh consideration on the basis of material on record.

Before us, it was also contended on behalf of the respondents that the
show cause notice issued to the respondents was defective inasmuch as the
show cause notice, apart from referring to the fact that the two items were
covered by two separate and distinct sub-headings, did not state that the
E process undertaken by the respondent resulted in the manufacture of a new
product. Since that was not stated in the show cause notice, the department
cannot be permitted to go beyond the facts stated in the show cause notice.
This aspect of the matter has also not been considered by the authorities
under the Act.
F It was then contended by the respondents before us that reliance upon
two distinct sub-headings under the amended excise tariff itself was not
conclusive and good enough to hold that there was manufacture of cold
rolled strips by the respondents. Learned counsel for the respondents placed
reliance on the following decisions:
G
Hyderabad Industries ltd. v. Union of India, (1999) 108 ELT 321 SC,

Hyderabad Industries Ltd. v. Union of India, ( 1995) 78 EL T 641 SC.

Prabhar Sound Studios v. Additional Collector ofCentral Excise (1996)
H 88 EL T 635 SC.
C.C.E. v. STEEL STRIPS LTD. [B.P. SINGH, J.] 861
In view of these decisions it is submitted that the observations made A
in Lal Woollen & Silk Mills (P) Ltd., Amristar v. Collector of Central Excise,
Chandigarh, [ 1999] 4 SCC 466 towards the end of paragraph I in the said
decision is neither correct nor conclusive. This question is no longer res-
integra, as this Court has in Commisioner of Central Excise, Chandigarh-I
etc. etc. v. Mis. Markfed Vanaspati & Allied Industries etc. etc. C.A. Nos.
77-80 of2001 etc. etc. decided on April, 9 2003 upheld the contention urged B
on behalf of the respondents. In the aforesaid judgment this Court, after
noticing the observations in Lal Woollen & Silk Mills (P) Ltd., Amirtsar
(supra) held.

"However, it appears to us that the observation made on this C
authority are "per incuram". In so observing, the decision of a larger
Bench of this Court in the case of Collector of Central Excise, Indore
v. Universal Cable Ltd. Reported in [1995] Supp 2 SCC 465 has not
been noted or considered. In this case an argument that a good
become excisable because it is covered by Tariff Entry, has been
negatived. In the case of 8.P.L Pharmaceuticals Ltd. v. Collector of D
Central Excise reported in (1995] Supp 3 SCC I it has also been held
that merely because there is a change in the tariff Item the goods does
not become excisable. Subsequently in a judgment dated 13th February,
2003 in Civil Appeal No. 6745 of 1999 it has been held that merely
because an item falls in a Tariff Entry, it does not become excisable E
unless there is manufacture and the goods is marketable. In Lal
Woolen & Silk Mills' case (supra) it has not been held that the twin
test of manufacture and marketability is not to apply. It is not possible
to accept the contention that merely because an item falls in a Tariff
Entry it must be deemed that there is manufacture. The law still
remains that the burden to prove that there is manufacture and that F
what is manufactured is marketable is on the revenue. In this case no
new evidence is placed to show that there is manufacture. "Spent
earth" was "earth" on which duty has been paid. It remain earth even
after the processing. Thus if duty was to be levied on it again, it
would amount to levying double duty on the same product.
G
In the result these appeals are disposed of by remitting to the Tribunal
in Civil Appeal 7165 of2000 and Civil Appeal Nos. 7706-7711 of2002, and to
the Commissioner of Excise (Appeals) in Civil Appeal Nos. 439-442 of2002
to consider and record findings on the following questions and dispose of
the matters before them in accordance with law. The consideration of these H
862 SUPREME COURT REPORTS [2003] 3 S.C.R.

A questions shall be on the basis of the material on record, and no further
evidence shall be allowed to be adduced.

I. Whether the excise authorities have led any evidence before the
first adjudicating authority on the question as to whether cold
rolled strips are the result of a process of manufacture undertaken
B by the respondents or whether the material referred to in the order
of the Assistant Commissioner is based upon his own personal
knowledge or is based on authoritative publications? The burden
is on the department to prove that the process of manufacture
resulted in emergence of a commercially distinct commodity.
c 2. Whether the show cause notice issued to the respondents was
defective inasmuch as it did not state, apart from referring to the
two sub-headings under amended Central Excise Tariff, that there
was manufacture of a new product, namely cold rolled strips from
hot rolled strips?
D 3. In Civil Appeal Nos. 7165 of 2000 and 7706-7711 of 2002 the
question whether the respondent has passed on the duty of
excise to its buyers is remitted to the Assistant Commissioner
concerned for his consideration and finding having regard to the
provision of Section 11-B of the Act.
E In the Appeals in which we have remitted the matters to the Assistant
Commissioner to consider the question as to whether the respondents have
passed on the burden of duty of excise to their buyers, which question has
to be considered in the light of the provisions of Section 11-B of the Act, it
is only appropriate that the Assistant Commissioner concerned should first
F record a findings on that question. If the finding is against the respondents
their claim applications shall have to be rejected. This of course, is subject
to the order that may be passed in appeal by the appellate authority and
ultimately by the Tribunal. Only if it is ultimately found that the respondents
have not passed on the burden of excise duty to their buyers, the other
questions which we have remitted to the Tribunal may require consideration.
G We, therefore, direct that in the first instance those appeals shall stand
remitted to the concerned Assistant Commissioners to hear to parties and
decide only the question of unjust enrichment having regard to the provisions
of Section 11-B of the Act. It will be open to the respondents to challenge
the finding if it goes against them before the appellate authority and/or before
H the Tribunal. If no appeal is preferred against an adverse finding by the
C.C.E. v. STEEL STRIPS LTD. [B.P. SINGH, J.) 863
Assistant Commissioner, that will be an end of the matter and no further A
consideration by the Tribunal will be necessary. However, if it is ultimately
found that the respondents have not passed on the burden of excise duty
to their buyers then the Tribunal will consider the other questions, which we
have remitted to it for its consideration and the Tribunal shall thereafter
dispose of the matters in accordance with law. To enable the Tribunal/
Commissioner to pass fresh orders, we set aside the impugned judgments and B
orders of the Tribunal in all the appeals, as also the Order of the Commissioner
in Civil Appeal Nos. 439-442 of2002.

These appeals are disposed of accordingly. There shall be no order as
to costs.
c
N.J. Appeals disposed of.