Commissioner Of Central Excise vs M/S. Tilda Riceland Pvt. Ltd

[Arising out of Order-In-Appeal No. 587-588/SVS/GGN/2013 dated 29.10.2013 passed by Commissioner of Central Excise, Delhi III]

For approval and signature:

Honble Mr Ashok Jindal, 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?

Commissioner of Central Excise Appellants

New Delhi III

Vs.

M/s. Tilda Riceland Pvt. Ltd. Respondent

Appearance:

Shri V P Batra, AR for the Appellants

None for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 08.04.2015

FINAL ORDER NO. A/ 51420 /2015-Ex(SM)

Per Ashok Jindal :

The Revenue is in appeal against the impugned order wherein learned Commissioner (Appeals) has held that refund claim filed by the respondent is admissible on merits and being processed accordingly.

2. The facts of the case are that for the period January, 2010 to March, 2010 and June, 2011 to September,2011, the respondent filed the refund claims of the services received for export of the goods under Notification No. 17/09 ST dated 7.7.09. The adjudicating authority denied the refund claim for the services of transport charges of rail port, terminal charges at the port of export and CHA services. On appeal, this issues were examined by the learned Commissioner (Appeals) on merits and thereafter he held that refund claim is admissible and be processed accordingly. Against the said order, Revenue is in appeal on the ground that Commissioner (Appeals) has no power to remand the matter.

3. The learned AR appearing on behalf of the Revenue submits that learned Commissioner (Appeals) has decided the issue on merits but has sent the matter back to the adjudicating authority for processing the refund claim. As per the grounds of appeal, he submits that matter has been remanded to the adjudicating authority by learned Commissioner (Appeals) who has no power to pass such order and same is not sustainable. He further submits that the Committee of Commissioners has not quoted the proper section while passing the Review order No. 8/2014 dated 4.4.2014, wherein the provisions are mentioned as Section 35 A(3) of the CEA, 1944 whereas the proper section is 85 (5) of the Finance Act, 1994. He further submits that as prayer made in the Review order for setting aside the impugned order, he is having same stand while arguing the matter.

4. None appeared on behalf of the respondents, nor any request for adjournment has been received. After hearing the learned AR, I find that appeal itself can be heard at this stage. Therefore, same is taken up for disposal.

5. Considering the submissions made by learned AR there was direction to process the refund claim in the impugned order.

6. On perusal of the impugned order, I find that Commissioner (Appeals) has given clear cut finding that on merits, respondent is entitled to refund claim and sent the matter back to the adjudicating authority for processing the claim. The contention of the revenue is that process of refund claim sent to the lower authority is a remand of the appeal is not correct. Infact the understanding of the remand order by the departmental officer is very unfortunate to understand that if the case has been decided on merits and same is sent to lower authority for processing the same and if it is remand option for deciding and the department would act to remand only. Therefore, understanding of the departmental officer as well as learned AR that if refund claim is allowed and send to the lower authority for processing the same amounts to remand is not correct. In these circumstances, I do not find any merit in the Revenues appeal. Therefore, by upholding the impugned order, Revenues appeal is dismissed.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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