Cce, Raipur vs M/S. Aparna Carbons Pvt. Ltd
- CitationExcise Appeal No.E/60771/2013 EX. [SM]
Ratio decidendi
The rule this decision rests on
Where a party produces documentary evidence for the first time before the Commissioner (Appeals) and that evidence was not part of the adjudication record before the original authority, the Commissioner (Appeals) cannot rest a decision in the party's favour on that evidence; doing so is contrary to Rule 5 of the Central Excise (Appeals) Rules, 2001, since eligibility of the disputed credit is for the original authority to adjudicate in the first instance. Where an appellate order is set aside on this ground, the proper course is to remand the matter to the original authority for de novo adjudication on the additional evidence, with the assessee being given an opportunity of personal hearing before that adjudication.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.50/RPR-II/2013 dated 10.09.2013 passed by the Commissioner (Appeals-II), Customs, Excise & Service Tax Deptt., Raipur]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
CCE, Raipur Appellant
Vs.
M/s. Aparna Carbons Pvt. Ltd. Respondent
Present for the Appellant : Shri R.K. Mishra, DR
Present for the Respondent: None
Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 24.07.2015
Final ORDER NO. 53278/2015
PER: S.K. MOHANTY
The Revenue is in appeal against the impugned order dated 10.09.2013 passed by the Commissioner (Appeals-II), Raipur, wherein cenvat credit taken on MS Channel, Plates, Joist, Beam etc. used for installation of various plants by the respondent in its factory has been allowed, based on the Chartered Engineers certificate and the photographs of different plant facilities produced by the respondent.
2. The Revenue has preferred this appeal interalia, on the ground that the additional documentary evidence based on which the appeal was allowed by the Commissioner (Appeals), were not part of adjudication records, and thus, the impugned order is contrary to Rule 5 of the Central Excise Rules, 2001.
3. Heard Shri. R.K. Mishra, ld. DR for Revenue and perused the records.
4. I find from the available records that the Chartered Engineers certificate and the photographs of different plant facilities, based on which the appeal was allowed by the Commissioner (Appeals) were not part of the adjudication records. Adjudication of the matter with regard to eligibility of Cenvat credit on the disputed goods is the responsibility of the original authority. Since, the additional documentary evidences were not produced by the respondent at the time of adjudication proceedings and the same were produced for the first time before the Commissioner (Appeals), I am of the view that allowing the appeal of respondent based on those additional evidences by the Commissioner (Appeals) is contrary to the provisions of Rule 5 of the Central Excise (Appeals) Rules, 2001.
5. Therefore, the impugned order is set aside and the matter is remanded back to the original authority for denovo adjudication based on the aforementioned documentary evidences. Needless to say, the respondent shall be given opportunity of personal hearing before adjudication of the matter. The appeal is disposed of in above terms.
(Dictated and pronounced in the open Court)
(S.K. MOHANTY)
MEMBER (JUDICIAL)
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