Custom, Excise & Service Tax Tribunal
The Simplex Mills Co. Ltd vs Commissioner Of Central Excise, ... on 4 October, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/EH/541/10 in APPEAL No. E/1/08 (Arising out of Order-in-Appeal No. CPA(3261)67/MI/2007 dated 19.11.2007 passed by Commissioner of Central Excise (Appeals), Mumbai-I) For approval and signature: Hon'ble Mr. P.G. Chacko, Member (Judicial) Hon'ble Mr. M. Veeraiyan, Member (Technical) ======================================================
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 : No 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?
====================================================== The Simplex Mills Co. Ltd. Appellant Vs. Commissioner of Central Excise, Mumbai-I Respondent Appearance: Shri T.C. Nair, Consultant, for appellant Shri S.M. Vaidya, Authorised Representative (JDR), for respondent CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) Hon'ble Mr. M. Veeraiyan, Member (Technical) Date of Hearing: 4.10.2010 Date of Decision: 4.10.2010 ORDER NO................................. Per: P.G. Chacko
The present application filed by the department (respondent in appeal) seeks out-of-turn disposal of the appeal filed by the assessee. After hearing the learned DR and the learned consultant, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after allowing the Revenue's application, we take up the appeal.
2. The appeal is directed against a remand order passed by the learned Commissioner (Appeals). It appears from the records that, before the lower appellate authority, there were two rounds of litigation on the same subject-matter. It is at the end of the second round that the above remand order was passed on an appeal of the department and cross-objection of the assessee. It is an open remand. One of the grievances raised in the present appeal of the assessee is that the Commissioner (Appeals) did not have the power of remand when the impugned order was passed. A second grievance is that, on account of the remand ordered by the lower appellate authority, a claim for refund of duty of over Rs.30 lakhs filed by the assessee is getting blocked. After examining the records, we have found valid reasons for the original authority to take fresh decision after considering the grievances of both sides. No doubt, the learned Commissioner (Appeals) did not have the power of remand at the material point of time, but the reasons noted by him for remanding the matter appear to be valid. The learned Commissioner (Appeals) rightly found that the nature of deductions allowed by the original authority and the quantum thereof had not been discussed by that authority. The remand was ordered apparently for a speaking order on the issue. The original authority has to consider the assessee's refund claim also in accordance with law. Therefore, after setting aside the orders of both the authorities, we allow this appeal by way of remand with a direction to the original authority to pass a speaking order on all the issues in accordance with law, bearing in mind the observations made by the Commissioner (Appeals). Needless to say that the assessee should be given a reasonable opportunity of being heard. The application is also disposed of.
(Pronounced in Court) (M. Veeraiyan) Member (Technical) (P.G. Chacko) Member (Judicial) tvu ??
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