Custom, Excise & Service Tax Tribunal
Cce, Salem vs M/S. Sakthi Sugars Ltd on 30 June, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. E/263/2010
(Arising out of Order-in-Appeal No. 9/2010 (SLM) CE dated 19.2.2010 passed by the Commissioner of Central Excise (Appeals), Salem)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Salem Appellant
Vs.
M/s. Sakthi Sugars Ltd. Respondent
Appearance Shri P. Arul, Superintendent (AR), for the Appellant Ms. Suganya, Advocate for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 30.06.2014 Date of Decision: 30.06.2014 Final Order No. 40358/2014 Revenue filed this appeal against the order of the Commissioner (Appeals) whereby the adjudication order was set aside and the matter was remanded to the adjudicating authority for passing a fresh order.
2. After hearing both sides and on perusal of the records, I find that the adjudicating authority has denied CENVAT credit amounting to Rs.18,88,786/- taken on the following:-
(i) Unspecified documents such as proforma invoice, money receipt, the documents raised in the name of Head Office and the documents not containing particulars like Registration number;
(ii) Service tax paid on Stevedoring activity and Warfage activity services; and
(iii) Service tax paid on services used for generation of electricity in the co-generation plant and has imposed penalty of Rs.5,00,000/- under Rule 15 of CENVAT Credit Rules, 2014 in addition to fastening the interest liability under Rule 14 of CENVAT Credit Rules, 2004.
3. It is seen from the impugned order that the adjudicating authority has not recorded any reason to deny the CENVAT credit on the above services. The respondent also furnished copies of the registration certificate. The Commissioner (Appeals) observed that the reason for the denial of credit, atleast, should have been spelt out in the adjudication order. Hence, the Commissioner (Appeals) directed the adjudicating authority to re-examine the case after giving proper opportunity of hearing.
4. The learned AR for Revenue submits that the Commissioner (Appeals) has no power to remand the matter to the adjudicating authority as per Section 35A(3) of the Central Excise Act, 1944. He relied upon the decision of the Honble Supreme Court in the case of MIL India Ltd. Vs. CCE 2007 (210) ELT 188 (SC) and the decision of the Honble Punjab & Haryana High Court in the case of CCE Vs. B.C. Kataria 2008 (221) ELT 508 (P&H). He also relied upon the decision of the Tribunal in the case of CCE Vs. Cairn Energy India Pvt. Ltd. 2013 (287) ELT 315.
5. On the other hand, the learned counsel on behalf of the respondent relied upon the decision of the Tribunal in the case of CCE Vs. Honda Seil Power Products Ltd. 2013 (287) ELT 353 and CCE Vs. TVS Interconnect Systems Ltd. Final Order No. 40201/2014 dated 6.3.2014.
6. I find that the Tribunal in the case of Honda Seil Power Products Ltd. (supra), after considering the decision of the Honble Supreme Court in the case of MIL India Ltd. (supra), dismissed the Revenues appeal. The relevant portion of the said decision is reproduced below:-
8. The aforesaid observation of the Supreme Court in the matter of MIL India Ltd. (supra) are in the nature of passing remarks on the scope of powers of Commissioner (Appeals) hearing an appeal under Section 35A(3). Therefore, aforesaid observation of the Supreme Court in our view cannot take precedence over the finding of the Supreme Court in the matter of Union of India v. Umesh Dhaiamode (supra) based on the analysis of the provision itself.
9.?The Gujarat High Court in the case of CCE, Ahmedabad v. Medico Labs reported in 2004 (173) E.L.T. 117 (Guj.) has also held that Commissioner (Appeals) continues to have power of remand even after the amendment of Section 35A(3) of the Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11-5-2001.
10.?Otherwise also Section 35A(3) of the Act as amended confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be remand of the matter for fresh adjudication. For example, if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. This would create an anomaly and cause prejudice to the Revenue as it would bring an end to the litigation without adjudicating on the demand raised by the show cause notice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, we are of the view that power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944.
7. It is seen that the Tribunal in the case of Honda Seil Power Products Ltd. (supra), after considering the decisions of the Honble Supreme Court in the case of MIL India Ltd. (supra) and the Honble Gujarat High Courts decision in the case of Commissioner Vs. Medico Labs 2004 (173) ELT 117 (Guj.) dismissed the Revenues appeal. So, the case laws relied upon by the learned AR has no relevance to the facts of the present case.
8. On perusal of the impugned order, I find that the Commissioner (Appeals) had remanded the matter for re-examination of the evidences in respect of registration certificate and other issues. Therefore, after considering the merits of the case as well as the decision of the Tribunal in the case of Honda Seil Power Products Ltd. (supra), I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, I uphold the impugned order and reject the appeal filed by the Revenue.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 4