Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Eii Ess Engineering Pvt. Ltd on 22 June, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/885/08 - Mum
(Arising out of Order-in-Appeal No. SRK/29/Bel/2008 dated 14.05.2008 passed by the Commissioner of Central Excise (Appeals), Mumbai.)
For approval and signature:
Honble Shri Ashok Jindal, 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 :
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?
Commissioner of Central Excise, Belapur
:
Appellants
Versus
M/s. EII Ess Engineering Pvt. Ltd.
Respondents
Appearance Shri S.M. Vaidya, JDR for Appellants Shri Sanjay Dwivedi, Advocate for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 22.06.10 Date of Decision : 22.06.10 ORDER NO.
Per : Ashok Jindal The Revenue has filed this appeal against the impugned order on the ground that the Commissioner (Appeals) has no power to remand the matter to the original adjudicating authority.
2. Operative part of the order of the Commissioner (Appeals) reads as under:-
Now coming to the inputs declared as obsolete in the Balance Sheets for the year 2003-04 and 2004-05, CBEC vide Circular No. 645/36/2003-CX dated 16.7.2002 has given directions on admissibility of credit taken on written off inputs, including partial write off. As there is nothing forthcoming on records as whether the inputs are fully written off or partially written off and still capable of any available for use in the manufacture of goods as envisaged in the Boards Circular mentioned above, the case is remanded for re-consideration of the admissibility of CENVAT credit on inputs which are declared as obsolete including goods mentioned Sr. Nos. 1 and 2 of the rejected goods.
In view of the above, the appeal is allowed by way of remand.
3. From the above, I find that the Commissioner (Appeals) has remanded the matter back to the adjudicating authority for fresh adjudication. Provisions of law clearly disclose that pursuant to amendment brought out in the year 2001, the power of remand which was earlier available to the Commissioner (Appeals) has been specifically deleted from the statute book.
4. Following the ratio of the Judgement of the Apex Court in the case of MIL India Ltd. vs. CCE, Noida 2007 (210) ELT. 188 (S.C.) wherein it was observed that the power of remand by Commissioner (Appeals) has been taken away by amending Section 35A with effect from 11.5.2001 under the Finance Bill, 2001, I set aside the impugned order and allow the appeal by way of remand. Ld. Commissioner (Appeals) shall dispose of the assessees appeal after hearing both the sides in accordance with law as expeditious as possible.
5. Appeal is allowed by way of remand (Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 3