2011 (2) TMI 533

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....after extending a reasonable opportunity to the appellant and then pass afresh order dealing with all the issues raised by him during the proceedings. In remand proceedings, the Commissioner (Appeals) has passed the following order :- "4. Aggrieved by the impugned order the appellant filed an appeal and a stay petition. My predecessor in his order-in-appeal No. 41/01 dt. 22-4-2001 has held that, "I have carefully gone through the records of the case and their submissions made during the personal hearing as well as grounds of appeal. I have given my earnest consideration to the points urged and evidences on record. The Asst. Commissioner has analyzed each and every point in his order in the findings portion step by step and in detail.....

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....duct 'Lip salve is not uitable for use only for soldiers operating in high altitude areas but it is of use for every one as protection from dry, cold weather or sun rays - Classifiable as a skin care cream under Heading 33.04 of Central Excise Tariff Act, 1985 as per Note 2 read with Note 5 of Chapter 33 ibid and not as medicament under Heading 30.03 ibid - Majority opinion of the Tribunal upheld". 7. Respectfully following the Hon'ble Apex Court's decision I uphold the order of the Lower Authority wherein the classification of the product vaseline Lip Guard has been ordered under Chapter sub-heading 3304 of CETA 1985. The appellant is liable to pay the differential duty of Rs. 1,73,45,647.00 (Rupees one crore seventy three lakhs fort....

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....ty. The issue is whether the impugned order is a speaking order or not? 7. On careful examination of the impugned order we find that after recording the facts, he has also reproduced the order dated 22-1-2002 of this Tribunal. Immediately thereafter he arrived at a decision that "At this point of time, this issue is no longer res integra." We are very surprised to know that how the issue is no longer res integra when the Commissioner (Appeals) has not discussed the facts of the case in hand, what is the issue involved etc. 8. When the learned DR submitted that this order is a speaking order, we are not sure whether the learned DR has gone through the impugned order thoroughly or not. Merely supporting the impugned order, will no....