MISC. APPEAL No.635 OF 2008 ----- Against the order and decision of the Appellate Tribunal Eastern Bench, Kolkata presided over by Hon’ble Dr. Chittaranjan Satapathy, Technical Member and Hon’ble Sri D.N. Panda, Judicial Member in F. No. EDM- 360/2005 contain in Order No. A-790 dated 12.08.2008 served on 01.09.2008. ---- Commissioner of Central Excise, Central Revenue Building, 3rd Floor, Birchand Patel Path, Patna ( Bihar ) ----- (Appellant) Versus M/S Trishul Electrocastings Pvt. Limited, Industrial Area Bettiah, District- West Champaran (Bihar) ---Respondents ---- For Appellant : Mrs. Nivedita Nirvikar & Mrs. Archana Sinha, Advocates. For Respondent: Mr. Vikash Jain, Sr. Adv with Mr. Pankaj, Adv. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA Shiva Kirti Singh & Birendra Prasad Verma, JJ : Heard learned counsel for the Commissioner of Central Excise, Patna, the Appellant, and learned counsel appearing for the respondent Assessee. 2. The appellant has challenged order of the Customs, Excise and Service Tax Appellate Tribunal, Eastern Zone Bench, Kolkata dated 12.08.2008 whereby appeal preferred by the respondent- Assessee has been allowed after setting aside order of the Commissioner, Central Excise, Patna dated 20th May, 2005, which has been annexed as Annexure-2 to this memorandum of appeal. 3. Learned counsel for the appellant has taken us 2 through notice of the demand-cum- show cause dated 11.09.2002 issued by the appellants to the respondent- assessee and some officials of the Patna Commissionerate, contained in Annexure-1. Particular emphasis was placed upon contents of the said notice in sub-paragraph- (ii) & (vi) of paragraph-2 to highlight the controversy between the parties. According to the said notice the assess was engaged in manufacture of excisable goods falling under Chapter 7206.90, which were notified under section 3A of Central Excise Act, 1944 where-under, as per Induction Furnace Annual Capacity Determination Rules 1997, ( the Rules) excise duty had to be paid on the basis of ACP ( Annual Capacity of Production). According to the notice the assess had also been incidentally engaged in the manufacture of excisable goods falling under chapter- 73, 84, 86, which were liable to duty at the rate of 16% of the value. According to the notice, in the past also the assess had paid duty on the basis of ACP for the Non-Alloy Steel ingot and billets and also duty at the rate of 16% ad volerum for his other products. Further a demand of Rs, 4,15,726,71 as differential excise duty alleged to have been short paid by the assessee because he claimed that the other products were incidental and hence covered under the ACP scheme. 4. On behalf of the appellant findings in favour of the case of the revenue contained in order of the learned 3 Commissioner ( Annexure-2) were also relied upon to raise a grievance that such findings against the assessee were neither noticed nor reversed by the learned Tribunal in the order under appeal dated 12.08.2008 and simply by ignoring such finding of facts the Tribunal wrongly accepted that on the basis of settled law the assessee could not be required to pay duty in respect of production, under section 3 of the Central Excise Act because he had discharged such liability by paying duty under compounded levy scheme. 5. Learned counsel for the respondent-assessee tried to take us to the facts to show that the notice contains incorrect allegations and on the basis of figures of production the item covered under the compounded levy scheme definitely per dominate over the other items and hence the Tribunal’s order requires no interference. 6. Having heard the parties we are of the considered view that the learned Tribunal, in the facts of the case was required to take notice of the relevant facts and if it found materials to differ from the findings given by the learned Commissioner then discussion was required to be made along with reasons, at least in brief, for taking a different view on facts. We find that the learned Tribunal has passed the order under appeal only on the basis of settled law without considering the case of the appellant that on facts the claim of the assessee should not have been allowed in view of the 4 Explanation furnished under Rule 2 of the Rules. 7. In our view an important issue of facts arises in the present case as to whether besides the non alloy steel ingots and billets falling under sub – heading Nos. mentioned in Rule 2 of the Rules, the other products were items ordinarily produced in the unit or were mere incidental products covered by the Explanation to Rule -2. 8. In view of the aforesaid discussion and for considering the relevant issue indicated above, the matter requires to be remitted to the learned Tribunal and hence the order under appeal dated 12.08.2008 is set aside and the case is remitted to the Tribunal. It is made clear that the Tribunal shall re-hear the matter and decide the relevant issues on merits without being influenced by any factual observations in this order. This appeal is allowed to the extent indicated above. There shall be no order as to costs. Patna High Court Dated, the 19th July, 2010 BTiwary/ N.A.F.R. ( Shiva Kirti Singh, J ) ( Birendra Prasad Verma, J)