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M/S. Vignesh Alloys Pvt. Ltd vs Commissioner Of Customs And Central ...

Customs Excise and Service Tax Appellate Tribunal25 August 2015

Ratio decidendi

The rule this decision rests on

A Commissioner (Appeals) who sets aside an adjudication order must decide the issue that the adjudicating authority actually determined, and may not decide the appeal on a different premise, such as clandestine removal, that was not the subject matter of the adjudication; where the appellate authority has done so, the matter is to be remanded to it for readjudication of the issue arising from the adjudication order. Where the question on fact and law is left open for argument, the appellant is entitled to a reasonable opportunity of hearing before the Commissioner (Appeals) on readjudication, and the matter is to be decided on its own perspective.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNALSOUTH ZONAL BENCH, CHENNAIE/00277/2012

[Arising out of Order-in-Appeal No.CMB-CEX-000-APP-028-12, dated 30.01.2012 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Coimbatore]

M/s. VIGNESH ALLOYS PVT. LTD. APPELLANT

Versus

COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE AND SERVICE TAX, COIMBATORE RESPONDENT

Appearance:

For the Appellant Ms. D. Naveena, Adv.

For the Respondent Shri L. Paneerselvan, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 25-08-2015

FINAL ORDER NO. 41138 / 2015

It is vehemently contested that although the issue framed by the Adjudicating authority was that Aluminium Dross is dutiable from 10.05.2008 in view of the amendment made to Section 2 (d) of the Central Excise Act, 1944 but not prior to that date, that was all together ignored by learned Commissioner (Appeals) while he disposed the appeal of the appellant in terms of his order dated 30.01.2012. Instead of dealing with the principal issue of dutiability learned Commissioner went by a presumption that there was clandestine removal, which was not actually the issue before the Adjudicating authority. Therefore, this order is to be sent back to Commissioner (Appeals) for decision on the issue what that was before the Adjudicating authority.

2. Revenue supports the orders of the authorities below.

3. Heard both sides and perused the records.

4. Reading of para 18 (i) of the Adjudicating order demonstrates that the issue was on dutiabuility of Aluminium Dross at the adjudication stage. But Commissioner (Appeals) all together went on a different premise, which was not the subject matter of adjudication. Therefore, the matter is remanded to him for readjudication of the issue that crops up from the Adjudication order.

5. The question on fact and law is open for argument by the appellant at the readjudication stage before Commissioner (Appeals). Reasonable opportunity of hearing shall be given to the appellant and the matter shall be decided on its own perspective. Appeal is disposed in the manner indicated above. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 06-09-2015

DRAFT Remarks

I II III

Date of dictation 25.08.2015

Draft Order - Date of typing 02.09.2015

Fair Order Typing 06.09.2015

Date of number and date of dispatch

5 E/00277/2012

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