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276 EXCISE LAW TIMES [ Vol. 372

6. Heard both the sides and perused the record.
7. This is the second round of litigation before this Tribunal. After hear-
ing both the sides in the first round of litigation, the Tribunal has remanded the
matter observing as follows :-
“After hearing both sides and perusal of case records, we find that there is
no finding by the Adjudicating Commissioner that the impugned interme-
diate product satisfies the criterion of suitably for use as fuel to merit classi-
fication under sub-heading 2710.13. It has earlier been held by the Tribunal
in the case of Sliverchem Industries Pvt. Ltd. v. C.C.E., Mumbai - [2003 (155)
E.L.T. 204 (Tri.-Mumbai)] that a product to be classifiable as special boiling
point spirit under sub-heading No. 2719.13 has to satisfy both the criteria
for motor spirit - in regard to flash point as well as suitability for use as
fuel, and that satisfaction of flash point criterion alone is not sufficient. Sec-
ondly, we also find that the details of comparable products manufactured
by M/s. Atlas Petrochemicals and M/s. Ram Remedies have not been made
available to the appellants. Similarly, comparative chart showing the differ-
ence between the impugned goods and goods manufactured by M/s.
G.A.I.L. showing both products to be different was also not produced by
the appellants before the Adjudicating Commissioner. Keeping in view the
foregoing, we are of the opinion that the matter requires fresh consideration
after furnishing details of the comparable goods to the appellants and after
taking into consideration the comparative chart and other documents pro-
duced by the appellants apart from testing the impugned products for its
suitability for classification under sub-heading No. 2710.13. As such, we set
aside the impugned order and remand the case for re-adjudication by the
Adjudicating Commissioner, who will grant a reasonable opportunity of
hearing to the appellants and will also take into consideration the addition-
al documents produced during this proceeding. We make to clear that all
issues (including the question of limitation) are left open to be considered
by the Adjudicating Commissioner at the time of re-adjudication.”
8. Pursuant to the said order, the Commissioner sent the samples to the
HPCL laboratory for necessary test to ascertain whether the product in question
specify the criteria of motor spirit as BIS 2796-2000 and hence is not suitable for
use as fuel in the spark ignition engine. Since the said report dated 18-11-2005
did not furnish as to whether the goods in question could be used as motor spirit
in admixture with other substance, the information was called for on the said
issue. In its report dated 25-11-2005, it has been clarified that even with the addi-
tive, the samples cannot be considered as motor spirit. Even though the depart-
ment has furnished invoice of GAIL and classification list of M/s. Atlas Petro-
chemicals, since they did not provide the necessary test results of the said prod-
uct and established that as to why the impugned products of the respondent are
comparable with the products of alleged other manufacturers, the Learned
Commissioner has observed that the products manufactured by the said manu-
facturer cannot be comparable as there is no specific evidence to indicate that the
impugned products of the assessee are also marketable as motor spirit. Conse-
quently, the Commissioner has decided to issue in favour of the respondent. We
find that the department has not challenged the said test report by sending it to
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