D.S. Alloys P. Ltd vs Commissioner Of Central Excise, Nagpur
- CitationAppeal No. E/2099/10
Ratio decidendi
The rule this decision rests on
The Tribunal will remand a matter to the original Adjudicating Authority, for fresh decision on the merits, where documents bearing on whether the inputs in respect of which credit was taken went into the manufacture of capital goods on which duty was discharged have not been considered, because they were not before the Adjudicating Authority, and where the Commissioner (Appeals) declined to consider them on the ground that they were not produced below; the Tribunal's reasoning is that such documents must be re-examined by the Adjudicating Authority in the interest of justice. Where the same issue arises in a connected appeal already remanded on identical terms, the Tribunal will remand the present appeal on the same terms to maintain uniformity and judicial discipline.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out Order-in-Appeal No. SR/280-282/NGP/2010 dated 31.08.2010 passed by the Commissioner of Central Excise (Appeals), Nagpur)
For approval and signature: Honble Mr. S.S. Garg, Member (Judicial)
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?
D.S. Alloys P. Ltd. Appellant
Vs.
Commissioner of Central Excise, Nagpur Respondent
Appearance:
None for the appellant Shri N.N. Prabhudesai, Supdt. (AR) for the respondent
CORAM:
Honble Mr. S.S. Garg, Member (Judicial)
Date of hearing : 07.08.2015 Date of decision : 07.08.2015
O R D E R No:..
This order will dispose of the Appeal no. E/2099/10 filed by the appellant against Order-in-Appeal No. SR/280-282/NGP/2010 dated 31.08.2010 passed by the Commissioner of Central Excise (Appeals), Nagpur.
2. The appellant stated that he had filed three separate appeals against the Order-in-Appeal and out of the three appeals, two appeals have already been decided by this Tribunal vide above order dated 01.06.2012 vide which the Tribunal has remanded the matter to the original Adjudicating Authority to decide the issue on its merits after considering the contention of the appellant. The remand order had also been submitted by the ld. counsel for the appellant. He further submitted that the ratio of the decision dated 01.06.2012 may kindly be applied in the present appeal also as the issue in all the three appeals is same except the period and the amount involved.
3. I have heard ld. counsel for the appellant and has perused the record.
4. On perusal, I find that the appellant has filed three appeals and out of three appeals, two namely E/2101/10 & E/2102/10 have been disposed of by this Tribunal vide decision dated 01.06.2012 and remanded the matter to the original authority and this appeal was left to be decided though the issue involved in all the three is the same and the impugned order is also the same. The ld. counsel further submitted that inputs like angles, channels etc. on which credit has been taken by the appellant has gone into the manufacture of capital goods on which they have discharged the duty. Therefore, they are entitled for input credit but they could not bring this fact in the knowledge of the Adjudicating Authority during the adjudication, therefore, the adjudication order was passed against them. When they produced all the relevant documents before the Commissioner (Appeals), the Commissioner (Appeals) did not consider the same on the premise that the records were not produced before the Adjudicating Authority, therefore he did not consider the same.
5. After considering the submissions made by the ld. counsel, I am of the opinion that the documents have to be re-examined at the end of the Adjudicating Authority as to whether the inputs on which credit has been taken has gone into the manufacture of the capital goods on which they have discharged the duty or not. Therefore, in the interest of justice, the matter is sent back to the original Adjudicating Authority to decide the issue on merits after considering the contention of the appellants. The appellants are directed to cooperate with the Adjudicating Authority and the Adjudicating Authority shall pass an appropriate order in accordance with law within a period of 90 days from the receipt of this order.
6. Ld. counsel for the appellant further submitted that in order to maintain the uniformity and judicial discipline, this appeal be also remanded to the Adjudicating Authority.
7. On the other hand, ld. counsel for the department has no objection if the appeal is remanded on the same terms, on which earlier two appeals were remanded vide order dated 01.06.2012.
8. Therefore, keeping in view the facts and circumstances, I hereby remand the present appeal to the original Adjudicating Authority in the terms stated above.
9. Appeal is accordingly disposed of by way of remand.
(Operative part pronounced in Court)
(S.S. Garg) Member (Judicial)
//SR
4
E/2099/10
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