M/S. Vishal Fabrics Pvt. Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-58/2009-AHD-I-CE/ID/COMMR-A-/AHD dated 27.02.2009, Passed by Commissioner (Appeals) C. Excise, S.T., & Customs, Ahmedabad)

M/s. Vishal Fabrics Pvt. Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Ahmedabad : Respondent (s)

Represented by :

For Appellant (s) : Shri P.P Jadeja, Consultant For Respondent (s) : Shri J. Nair, A.R.

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of 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?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial)

Date of Hearing / Decision : 11.02.2015

ORDER No. A/10131 / 2015 Dated 11.02.2015

Per : Mr. P.K. Das;

The appellant filed a refund claim of unutilised CENVAT credit in their CENVAT account, due to operation of clearance under Notification No. 30/2004-CE dated 09.7.2004. The Adjudicating authority, by a letter dated 31.10.2008 returned the refund claim with its enclosures, on the ground that there is no provision in the Cenvat Credit Rules, 2004 to give such a refund of balance amount remain in the CENVAT account. Commissioner (Appeals) rejected the appeal filed by the appellant observing that the appeal is not maintainable under Section 35 of the Central Excise Act, 1944. It is further observed that the Assistant Commissioner has not issued a show cause notice as well as a speaking order, but has simply returned the refund claim alongwith its enclosures.

2. Heard both sides and perused the records.

3. In my considered view, Commissioner (Appeals) while observing that the adjudicating authority had neither passed a speaking order nor issued a show cause notice, then, the adjudicating authority should be directed to pass either a speaking order or to issue show cause notice, if necessary, in the interest of justice.

4. In view of the above discussions, the impugned orders are set-aside and the matter is remanded to the adjudicating authority to pass a speaking order after observing the principles of natural justice. Needless to say that adjudicating authority shall give proper opportunity of hearing to the appellant before decision. Appeal is allowed by way of remand. (Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) ..KL

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