Commissioner Of Central Excise, ... vs M/S. Dcw Ltd
- CitationAppeal No.279/2010, dated 21.07.2010 passed by the Commissioner of Central Excise (Appe
Ratio decidendi
The rule this decision rests on
The adjudicating authority's decision on Cenvat credit claims, which neither records any evidence nor examines the material facts, is not a rational conclusion and cannot be sustained in judicial review; such a superficial decision is liable to be set aside and remitted for fresh examination. Authorities adjudicating a Cenvat credit claim must test the material facts of the case by evidence and must not be guided merely by earlier decisions of the Tribunal without relating those decisions to the facts of the case before them; a conclusion can be drawn only when the facts so tested are applied to the governing law. Where an issue has been decided by the Tribunal in a connected appeal, the adjudicating authority on remand is not required to re-deal with that issue, and its duty is confined to the remaining issues on which it must hear the assessee, record evidence, and pass a reasoned and speaking order.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.279/2010, dated 21.07.2010 passed by the Commissioner of Central Excise (Appeals), Madurai]
COMMISSIONER OF CENTRAL EXCISE, TIRUNELVELI APPELLANT
Versus
M/s. DCW Ltd. RESPONDENT
Appearance:
For the Appellant Shri B. Balamurugan, AC (AR)
For the Respondent M/s. Raman Associates for M/s. DCW Ltd. Adv.
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 06-07-2015
FINAL ORDER NO. 40902 / 2015
The dispute involved is whether: (i) Service tax paid on air fares; (ii) Insurance service availed paying service tax; and (iii) Service tax paid on telephone lines provided to the staff quarters entitle the appellant to Cenvat credit.
2. Record reveals that neither the Adjudicating authority nor the appellate authority nor the Review Order anywhere brings out any evidence to show that the authorities have examined evidence to arrive at rational conclusion. Their superficial decision does not get for approval in judicial review. Therefore, all the three credits claimed need re-examination. Accordingly, the matter is remitted to the Adjudicating authority to call for the evidence and to re-examine each of the claim to reach to a conclusion in accordance with law. It is pertinent to mention that authorities should not be merely guided by the decisions of the Tribunal without bringing the case in hand to the four of the decision. Only when material facts are tested by evidence, conclusion can be drawn under law applying the principles of law.
2. Learned counsel says that the windmill is also subject matter of the impugned order, having been decided by Commissioner (Appeals) against the assessees, the assessee had come in appeal to Tribunal. That appeal was registered as E/00625/2010 and has been allowed by Tribunals Final Order No.40505-40517/2015, dated 29.04.2015.
3. In view of decision on windmill issue, the Adjudicating authority need not deal with that issue further in the readjudication process. His duty is confined to the aforesaid Cenvat aspects only to decide afresh granting reasonable opportunity of hearing to assessee and recording evidences, he shall pass proper order. It is expected that a reasoned and speaking order will be passed.
4. In the result, appeal is remitted to the Adjudicating authority for adjudication on the above three Cenvat credit claim. Cross objection is disposed accordingly. (Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 24-07-2015
DRAFT Remarks
I II III
Date of dictation 06.07.2015
Draft Order - Date of typing 18.07.2015
Fair Order Typing 24.07.2015
Date of number and date of dispatch 27.07.2015
4 ST/00640/2010 and ST/CO/00056/2010
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