Per K. Sankararaman :

The appeal is against the order in appeal dated 7/8.2.94 passed by the Collector of Central Excise (Appeals), New Delhi allowing the departmental application filed under Section 35-E(4) and holding the appellant herein, M/s Swarajya Cement India (P) Ltd. to be liable to pay duty on their product, cement after including the value of gunny bags in which the same was being packed. The claim of the appellant which was allowed by the Assistant Collector was that the gunny bags were durable and returnable and there was an arrangement between them and their consignment agent for return of the bags and hence their cost was excludible from the price of cement for arriving at the assessable value of the latter. The Assistant Collector's decision accepting the claim of the respondent was set aside by the Collector (Appeals) with the direction for de novo decision after hearing them and after verification of relevant facts and pass a speaking order.

2. On behalf of the appellant, Shri Naveen Mullick, learned counsel raised a preliminary point about the appeal having been filed by the Assistant Collector on the authorisation of the Collector beyond the permitted period. There is a delay of 10 days on the part of the Assistant Collector in filing the appeal and this delay was condoned by the latter. Shri Mullick contended that the facility of condonation of delay is not available under Section 35-E for appeals filed by the department on the direction of either the Collector or the Central Board of Excise & Customs on a review of the orders in question to examine their legality and property. Such condonation is provided for only in Section 35 in respect of appeals filed before the Collector (Appeals). Proceeding further, learned counsel submitted that it has been settled in a long catena of decision that jute bags for packing of cement are durable and returnable packing eligible for the benefit claimed by the appellant. He referred to the judgment of High Court of Delhi in the case of J.K. Cement Works Vs. Union of India, 1994 (73) ELT 276. He added that even the Collector (Appeals) while disposing of the appeal had given a finding that the jute bags are durable and returnable but all the same he has set aside the order of the Assistant Collector and remanded the matter for de novo decision after granting opportunity of hearing and pass a fully speaking adjudication order after ascertaining and verifying all relevant facts. It was contended by Shri Mullick that all relevant facts that have been ordered to be verified by the Collector (Appeals) in his remand order stand verified and there is no dispute about this position and the purpose of remand is not clear. He pleaded that in the circumstances the appeal be allowed .

3. Shri M. Ali, JDR stated that he would confine his argument to the merits of the issue involved regarding the deduction claimed towards the cost of gunny bags. He conceded that the issue stands concluded by the judgement of the Supreme Court in Mahalaxmi Glass Works reported in 1988 (36) ELT 727 which had been followed by the Tribunal in the case of Excel Glass Ltd. Order No. 385/96-A dated 18.12.96 as well as 2510 & 2511/96-A dated 27.7.96. In these decisions it had been held that gunny bags used for packing of bottles are durable and returnable. There had been arrangement and agreement for return of the bags to the manufacturer.

4. We have considered the submissions. On the preliminary issue of the appeal by the Assistant Collector to the Collector (Appeals) being bared by limitation and hence not condonable by that authority as there is no express provision under Section 35-E for affording that relaxation, we find that the provisions of sub-section (4) provide a complete answer to this objection. It is provided therein that an application by the authorised officer to the Collector (Appeals) shall be heard as if that were an appeal made against the order of the adjudicating authority and that the pr