JUDGMENT : 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee. 2. This Court while admitting the appeal on 14.10.2011 framed the following questions of law:— “1. Whether the Tribunal was justified in giving directions to the appellant and also to jurisdictional Dy./Assistant Commissioner as contained in paragraph-13 of the impugned order? 2. Whether directions contained in paragraph 13 of the impugned order are legally and factually sustainable and can be said to be in conformity with the provisions of Central Excise Act, 1944?” 3. Mr. Kalavatia, counsel for the respondent has taken us to the observation made by Commissioner, Central Excise Appeal which reads as under:— “The assessee has further pleaded that the department has taken the assemble value of 1318407 bottle at higher side by taking the rate of Rs. 11,84 per bottle and duty @ 8.54 per bottle whereas the cum duty price per bottle should be Rs. 5/-. The assessee's presumption is misconceived. The demand of Rs. 11210750/- raised in the Show Cause Notice was not related to 1318407 bottles/performs only, but was for 3114646 bottles and performs i.e 1796239 bottles/performs cleared from DTA unit plus 1318407 bottles cleared clandestinely. The Annexure-VIII to Show Cause Notice clearly indicates that the rate per Bottle taken for quantifying the non-levy of duty is Rs. 480/- and not Rs. 11,84/-. 104. The assessee has pleaded that the value received should be treated cum duty price. The Hon'ble CEGAT in the impugned remand order has directed that the gross price received by the assessee an only be treated as cum duty price. Following the directions of the CEGAT, the price per bottle received by the assessee has been treated to be cum duty price and after allowing abatement of applicable duty, the duty under demand was modified to Rs. 65,22477/- in the Order-in-original No. 41/2003 dated 15.07.2003 I observe that in a similar case Hon'ble Tribunal (West Zonal Bench at Mumbai) vide its order No. A-539 to 552.WZB/05-C1 dated 17.06.2005 (passed in the matter of Sterlite Optical Technologies Ltd. v. CCEE Aurangabad) has observed that— “We have given our careful consideration to this aspect. Admittedly 6,35,626.7 Kmg of optical fibres manufactured in E3 invoices they would not become goods manufactured in a domestic unit. Admittedly 6,35,626.7 Kmg of optical fibres manufactured in E3 invoices they would not become goods manufactured in a domestic unit. Shorn of the sub-terfuges adopted by the appellants the transaction of these fibres is between an EOU and a domestic buyer. In such a transaction, value of the impugned goods has to be determined under Customs Valuation Rules. Normally the price at which goods are sold by an EOU becomes the transaction value under Rule 4 of the Customs valuation rules. The Commissioner adopted the price shown on the Central Excise invoice as transaction value for the purpose of computation of duty under proviso to Section-3(1) of the Central Excise Act. The appellants ‘plea that the commissioner should have either adopted the FOB value, or a contemporaneous price at which similar goods are imported has to be rejected. These alternative was of arriving at the value become irrelevant when transaction value is available. The appellant's plea that admissible deductions should be given on the price shown in Central Excise invoices has to be rejected. Price paid or payable is the transaction value as per Customs valuation Rules, 1988” Thus the duty on the clandestinely removed goods is to be calculated under the proviso to the Section-3(1) of the Central Excise Act, 1944. It is further from the Circular No. 1/2004-Cus dated 05.01.2004 issued vide File No. 305/192/2003-FTT of the central Board of Excise and Customs New Delhi. The duty liability on 13,18,407 PET bottles is, accordingly, recomputed which comes to Rs. 29,09,335/- under:— “DUTY CALCULATION CHART (Price of each PET bottles taken as Rs. 4.80) (1) Duty on goods for which parallel 3,13,531 PET bottles. Invoices recovered as per Annexure-VII of SCN (a) for the period 01.04.1997 to 01.06.1998 Value of goods cum duty price Rs. 12,11,160/- Basic Customs Duty@ 30% Adv. Rs. 3,63,348/- Special Customs duty 5% Adv. Rs. 60,558/- CVD @25% of Basic value + BCD+SCD Rs. 4,08,766/- TOTAL PRICE OF GOODS Rs. 20,43,832/- Total duty amount (68.75%) Rs. 8,32,672/- (b) for the period 13.06.1998 to 20.09.1998 value of goods cum duty price Rs. 2,166/- Basic Customs Duty @ 30% Adv. Rs. 650/- Special Customs duty 5% Adv. Rs. 108/- CVD @ 25% of Basic value + BCD+SCD Rs. 731/- Special Additional duty @ 4% Adv. Rs. 146/- TOTAL PRICE OF GOODS Rs. 3,801/- Total duty amount(75.5%) Rs. 8,32,672/- (b) for the period 13.06.1998 to 20.09.1998 value of goods cum duty price Rs. 2,166/- Basic Customs Duty @ 30% Adv. Rs. 650/- Special Customs duty 5% Adv. Rs. 108/- CVD @ 25% of Basic value + BCD+SCD Rs. 731/- Special Additional duty @ 4% Adv. Rs. 146/- TOTAL PRICE OF GOODS Rs. 3,801/- Total duty amount(75.5%) Rs. 1,635/- (2) Duty on goods for which no invoice was issued (Annexure-VIII) of SCN 10,04,676 Bottles Value of Goods cum duty price Rs. 27,48,381/- Basic Customs duty @ 30% Adv. Rs. 8,24,514/- Special Customs duty 5% Adv. Rs. 1,37,419/- CVD @ 25% of Basic value + BCD + SCD Rs. 9,27,579/- Special Additional duty @ 4% Adv. Rs. 1,85,516/- TOTAL PRICE OF GOODS Rs. 48,23,409/- Total duty amount (75.5%) Rs. 20,75,028/- Total duty liability (1) + (2) Rs. 29,09,335/-” 4. It is stated that in view of the above, benefits are already granted to the assessee and department has not challenged the sale. In that view of the matter questions which have been framed are not required to be answered as the benefit has already been granted to the assessee by the Commissioner. 5. According the appeal stands disposed of. However liberty is granted to revive the matter in case of difficulty.