Custom, Excise & Service Tax Tribunal
Bharat Heavy Electricals Limited vs The Commissioner Of Customs, Central ... on 24 January, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Stay & Appeal No: E/Stay/45/2010 in E/91/2010 (Arising out of Order-in-Appeal No: 24/2009 (H-I)(D) CE dated 9.9.2009 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals - I & III), Hyderabad.) 1. Whether Press Reporters 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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes Bharat Heavy Electricals Limited Appellant Vs. The Commissioner of Customs, Central Excise & Service Tax (Appeals - I & III) Hyderabad. Respondent
Appearance Shri V. J. Sankaram, Advocate for the appellant.
Shri M. M. Ravi Rajendran, DR for the revenue.
CORAM SHRI M. V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) SHRI P. KARTHIKEYAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 24.01.2011 Date of decision: 24.01.2011 STAY ORDER No._______________________2011 FINAL ORDER No._______________________2011 Per Shri M. V. Ravindran (Oral) This stay petition is filed by the applicant for staying the operation of the impugned order. After hearing both sides on the stay petition, we find that the appeal itself can be disposed of at this juncture. Hence, after disposing of the stay petition, we take up the appeal for disposal.
2. On careful consideration of the submissions made at length by both sides and perusal of the records, we find that the learned Commissioner (A) remanded the matter back to the Adjudicating Authority by recording as under.
8. In view of the foregoing, I set aside the refund order for fresh examination in the light of the facts revealed in the grounds of appeal filed and those recorded in paragraph of the impugned order. The department may take its own course of action as deemed necessary once the order is set aside on the ground of inconsistencies in the verification report discussed in paragraph 3 of the order and those relied by the department in the grounds of appeal in paragraph 10 & 11. In our considered view, after the judgment of the Honble Supreme Court in the case of MIL India Ltd. Vs. CCE, Nodia reported in 2007 (210) ELT 188 (SC) the powers to remand the matter back to the Adjudicating Authority no longer vests with the Commissioner (A). In view of this, the impugned order is set aside and the matter is remitted back to the Commissioner (A) to decide the matter within the available records in his office. Before coming to a conclusion, the learned Commissioner (A) shall grant an opportunity of personal hearing to assessee. The impugned order is set aside and the appeal is allowed by way of remand to Commissioner (Appeals).
(Pronounced and dictated in open Court) (P. KARTHIKEYAN) Member (T) (M. V. RAVINDRAN) Member (J) //rv// 3