THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N.RAVI SHANKAR C.E.A.No. 23 of 2011. ORDER: (Per Goda Raghuram,J) Heard Sri.S.Ravi, the learned Senior Counsel for the appellant and Sri.A.Rajashekar Reddy, the learned Senior Standing Counsel for Central Excise and Customs for the respondent. This appeal under Section 35G of the Central Excise Act, 1944 is directed against the order of the Customs, Excise and Service Tax Appellate Tribunal, Bangalore dt. 12.4.2010 whereby while rejecting the appeal preferred by the appellant against the revisional order dt. 15.12.2003 of the Commissioner of Central Excise, Hyderabad on merits, two grounds urged namely that the demands for duty are hit by limitation since the show cause notice was issued on 10.1.2000 after a period of two years nine months from the date of search of the appellant’s premises on 10.4.1997 and that the Primary Authority failed to consider that the impugned period commenced from February 1996 and ended by July, 1996; and that the value of RGI tallied with the reconciliation statement prepared for the said period on the basis of the sheets/papers recovered from the custody of the Technical Manager Sri.G.V.N. Rao and the value of the clearance as per RGI, were not considered by the Commissioner. In the grounds of appeal before the CESTAT, the appellant herein clearly and unequivocally urged that the demand for duty is hit by limitation and that the Primary Authority i.e. the Commissioner of Customs and Central Excise failed to consider that the value of RGI tallied with the alleged value of the goods reflected in the lose sheets/papers recovered from the Technical Director during the process of search. However, the CESTAT did not advert to these contentions urged in the appeal. By the order impugned, the CESTAT while upholding the finding of the Prima Authority regarding the clandestine clearances from the factory was yet inclined to remand the matter to the Primary Authority only for the limited purpose of quantification of the demand based in clandestine clearance. This is the complain herein. As the grounds urged i.e. with regard to the point of limitation and non-consideration of relevant piece of evidence namely the alleged reconciliation of clearances reflected in the lose sheets/papers visa-a-vis RGI was not considered by the CESTAT, this would constitute a substantial error of law and normally the order of the CESTAT is liable to be aside and the matter remanded to the Tribunal for consideration of these as well. It is however conjointly submitted by the respective parties that since the matter has already been remanded to the Primary Authority for quantification of duty, it is proper and convenient to direct the matter to be considered afresh on the point of limitation and the evidentiary value of the reconciliation statement, for recording a finding as to the liability of duty demand and whether there was any clandestine clearances, by the Primary Authority itself. Since the CESTAT failed to consider the question of limitation urged by the appellant herein; the plea set out in the grounds of appeal, as to the error committed by the adjudicating authority regarding non-consideration of the reconciliation statement, the finding of the CESTAT on the fact of clandestine clearances is set aside. Since the Primary Authority was already directed by the CESTAT to work out the duty, the Primary Authority shall also consider whether the demand for duty is barred on the point of limitation and whether there were any clandestine clearances, by duly considering whether the reconciliation statement (which is admitted to be on record) has any bearing on the finding as to clandestine clearances, and if so to what effect. The appeal is allowed as above and the matter remanded to the Primary Authority in the light of the observations and findings herein contained. Nothing stated herein shall be considered as an expression of opinion by this Court on the merits of the issue whether there were any clandestine clearances. The findings on the other aspects recorded by the Tribunal shall however remain unaffected. There shall be no order as to costs. ______________________ GODA RAGHURAM, J _______________________ N.RAVI SHAKAR, J 17.8.2011. KRB. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N.RAVI SHANKAR C.E.A.No. 23 of 2011. ORDER: (Per Goda Raghuram,J) Dt. 17.8.2011.