JUDGMENT :

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This Tax Appeal under Section 35G of the Central Excise Act, 1944 (for short, 'the Act 1944') is at the instance of an assessee and is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad, dated 3rd December 2019 passed in the Excise Appeal No.11457 of 2017, by which the Tribunal quashed and set-aside the Order in Original passed by the Commissioner and allowed the appeal by way of remand to the adjudicating authority for the purpose of passing a fresh order.

2. The appellant has proposed the following two questions of law for the consideration of this Court :

“(a) Whether in the facts and in the circumstances of the case and in law, the Appellate Tribunal was right in remanding the proceedings to the adjudicating authority for passing fresh order when neither the Appellant nor the Respondent requested for remand of the proceedings ?

(b) Whether in the facts of the case and in law the Appellate Tribunal was right in not setting aside the order of the Respondent after having held that demand for duty cannot be sustained for non-compliance of procedure under notification no.42/2001-CE ?”

3. The Appeal is ordered to be admitted on the above referred two substantial questions of law and is taken up for final hearing forthwith with the consent of the learned counsel appearing for the parties.

4. The appellant came to be served with a show-cause notice dated 20th January 2016 issued by the Commissioner of Central Excise and Service Tax, Valsad Commissionerate, calling upon the appellant to show-cause as to why :-

(i) Excisable goods valued at Rs.19,67,64,933/- during the period from March 2011 to February 2013 should not be confiscated as per the provisions of Rule 25 of the Central Excise Rules, 2002.

(ii) Central Excise duty involved amounting to Rs.2,11,79,188/- (Basic Excise Duty of Rs.2,05,62,316/- + Edu. Cess of Rs.4,11,248/- S&H.E.S. Cess of Rs.2,05,624/-) as detailed in Annexure "A" to this SCN should not be demanded and recovered from them under the proviso to Section 11A(1) (for the period upto 07.04.2011) and under Section 11A(4) (for the period 08.04.2011 onwards) of the Central Excise Act, 1944 on the quantity of goods removed for export during the period from March 2011 to February 2013.

(iii) Penalty should not be imposed on them under Section 11AC(1)(c) of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002 for such contravention.

(iv) Interest at appropriate rate should not be paid by them under Section IIAB (for the period upto 07.04.2011) and under Section 11AA (for the period 08.04.2011 onwards) of the Central Excise, Act, 1944.

5. It appears from the materials on record that the appellant is engaged in the manufacturing of “Readymade Garments” which are classified under Chapters 61 and 62 respectively of the Central Excise Tariff Act, 1985.

6. The controversy involved in the present litigation is with respect to the fact, whether actual export had taken place of the goods or not.

7. It is the case of the Revenue that when the goods liable to excise duty came to be exported by the appellant, the appellant was required to follow the procedure for export without payment of duty as prescribed under the Notification No.42/2001-CE (N.T.) dated 26th June 2001, as amended, issued under Rule 19 of the Central Excise Rules, 2002.

8. The adjudicating authority passed the Order in Original dated 30th March 2017 confirming the demand of the Central Excise duty and also imposing penalty. The operative part of the Order in Original reads thus :

“ORDER

(i) I confirm demand of Central Excise duty of Rs.2,11,79,188/- (BED Rs.2,05,62,316/- = Education Cess Rs.4,11,248/- + H&S Education Cess Rs.2,05,624/-) (Rupees Two Crore Eleven Lakh Seventy Nine Thousand One Hundred Eighty Eight only) Section 11A(1) & 11A(4) (applicable during relevant time) of Central Excise Act, 1944.

(ii) I order to p