M/S. Rajat Collections vs Commissioner Of Central Excise ...
- CitationAppeal No.CMB-CEX-000-APP-212-13, dated passed by the Commissioner of Customs, Central Exc
Ratio decidendi
The rule this decision rests on
Where an earlier round of adjudication has resolved an issue in the assessee's favour, a subsequent de novo order cannot reopen that issue or introduce a new ground of rejection on it; the authority remanded for fresh consideration may only decide the matters left open. Where a refund claim was initially rejected on identified grounds and those grounds were decided affirmatively for the assessee without any adverse finding, the remand authority must proceed to examine the claim on its merits and grant the refund unless it is otherwise barred by law, rather than creating a fresh dispute on a condition not in issue in the earlier proceedings.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.CMB-CEX-000-APP-212-13, dated passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Coimbatore]
M/s. RAJAT COLLECTIONS APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE (SERVICE TAX), COIMBATORE RESPONDENT
Appearance:
For the Appellant Shri N. Viswanathan, Adv.
For the Respondent Shri L. Paneerselvan, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 22-09-2015
FINAL ORDER NO. 41267 / 2015
There is a prayer of the appellant to decide the matter on the basis of the materials on record.
2. In absence of the appellant, Shri N. Viswanathan, Advocate was requested to assist the court and he brings out that the appellant has provided all the materials to the authority below, which is vividly clear from page 24 of the appeal record annexed to the appeal memo. The RTI information from the Drawback Division of the Revenue shows that the service tax chargeable on services within the input services definition is not factored in the drawback rates. Therefore, the authority should have considered the fulfillment of the notification requirement to dispose the matter. He brings out that this matter is in second round of litigation before the Tribunal. He also points out that the dispute before Tribunal earlier was whether there was factory of the appellant or not that was to be verified by proper officer and dispose of the proceedings. When the existence of factory was not doubted there should not have been further dispute in the de novo order. Therefore, the new litigation came up in second round of litigation about non-fulfillment of condition under Notification No.41/2007-ST, dated 06.10.2007 is of no relevance.
3. Heard both sides and perused the records.
4. Para 5 of the order of Commissioner (Appeals) shows refund was initially rejected on two grounds viz., (i) whether there was factory of the appellant to manufacture the goods and (ii) whether there was export from factory. That issue was decided affirmatively without any finding against assessee. Therefore, no new litigation can be created by de novo order. That is not permissible. Accordingly, the authority should examine the case of refund and if that is not otherwise barred by law shall grant the same to the assessee.
5. Accordingly, appeal is allowed with above direction.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 26-09-2015
DRAFT Remarks
I II III
Date of dictation 22.09.2015
Draft Order - Date of typing 25.09.2015
Fair Order Typing 26.09.2015
Date of number and date of dispatch 28.09.2015
2 ST/42389/2013
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