Commissioner Of Central Excise, Nashik vs Jay Enterprises

(Arising out of Order-in-Appeal No. AKP/82/NSK/2012 dated 28-05-2012 passed by Commissioner of Central Excise, Nashik)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

====================================================== Commissioner of Central Excise, Nashik Appellant Vs.

Jay Enterprises Respondent

Appearance:

Shri A.B. Kulgod, A. Commissioner (AR) for Appellant None, for Respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing : 09/09/2015 Date of Decision : 09/09/2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. AKP/82/NSK/2012 dated 28-05-2012 and as filed by the Revenue against the impugned order.

2. None appeared on behalf of the respondent. On perusal of records we find that the issue lies in a narrow compass, accordingly we take up the appeal even in the absence of any representation from the respondent.

3. Heard the learned departmental representative. It is his submission that the first appellate authority has remanded the matter back to the adjudicating authority while he has no power to do so. It is his submission that it is the only ground taken by the department in the appeal.

4. On consideration of submissions made by the learned departmental representative and the perusal of records, on specific query from the bench as to where the Commissioner (Appeals) could have decided the matter in absence of any findings and the various statements perused as to the discharge of service tax liability and interest thereof, learned A.R. fairly submits that the adjudicating authority, was not aware of the fact.

5. We find that the first appellate authority has recorded that the appellant had made good the service tax liability and the interest thereof, and the entire issue needs reconsideration holding so, he remanded the matter back for reconsideration for arriving at differential Service Tax liability. To our mind the factual matrix as to discharge of an amount by the respondent towards the service tax liability, needs to be considered by the adjudicating authority; in the absence of which, the differential duty as confirmed is incorrect. Without expressing any opinion on the merits of the case, keeping all the issues open, we set aside the impugned order and remand the matter back to the adjudicating authority to reconsider the issue afresh after following principles of natural justice.

6. The appeal disposed of by way of remand to adjudicating authority.

(Operative portion of the order pronounced in court on completion of the hearing of case).

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

akp 1 3 APPEAL No.ST/484/12-Mum