1. Two questions which arise for consideration in this appeal are whether aluminium strips, which is an interments product during the course of the manufacture by the respondent, is a marketable commodity or not and secondly, whether the principle of unjust enrichment would apply to the present case.
2. The question as to whether the intermediate product is a marketable commodity or not, is essentially a question of fact. The judgment under appeal, arises from a writ petition having been filed by the respondents wherein, the main contention raised was with regard to the vires of Rule 9 of the Central Excise Rules. That point was not gone into, the vires being ultimately upheld by this Court and the writ petition was allowed with the High Court coming to the conclusion that the intermediate product was not a marketable commodity.
3. In our opinion, this is essentially a question of fact, which should first be decided by the Excise Authorities before whom parties would be in a position to lead evidence. It is contended by Mr. Hidayatullah that the type of metal strip which comes into being at the intermediate stage is certainly not a commodity known to the market, not available in the market and therefore cannot be regarded as goods and hence not taxable. As we have already observed, this contention does not seem to have been considered, perhaps not raised at an earlier stage and it would therefore be appropriate that the Adjudicating Authority or the Collector (Appeals) decides this issue.
4. Learned Counsel for the parties agree that the case be remanded to the Collector (Appeals) in deciding this question and also the issue as to whether the principle of unjust enrichment would come into play in the instant case: This should be done after giving both sides opportunity of producing such evidence which they may deem fit and proper.
5. We accordingly, allow this appeal, set aside the judgment of the Bombay High Court. The respondent will be at liberty to file a supplementary appeal memo before the Collector (Appeals) within a period of 8 weeks and the Collector (Appeals) will thereafter decide the said appeal in accordance with law, uninfluenced with any observations made in the impugned judgment of the Bombay High Court. The Collector (Appeals) will endeavour to dispose of the appeal as expeditiously as possible, preferably within a period of six months from the date of filing of the supplementary appeal memo. No order as to costs.