2023 (2) TMI 228 - AT - Central Excise

Tribunal remands case to Commissioner (Appeals) for fresh decision on all grounds.

The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision on all grounds raised by the ... Re-credit claim - area based exemption - whether the re-credit claimed by the appellant is correct or not in terms of para 2C of area based exemption Notification No. 39/2001- CE dated 31.07.2001? - time limitation - HELD THAT:- There are force in the argument of learned counsel that the Learned Commissioner (Appeals) instead of remanding the matter to the Jurisdictional Assistant Commissioner he could have decided the matter finally at his end. The appellant emphatically argued on the issue of limitation. The learned Commissioner (Appeals) instead of deciding the limitation remanded the matter which in our view is prima facie incorrect. It is the submission of the learned counsel that after holding the entire proceeding pre-mature the learned commissioner remanded the matter instead of deciding finally on this observation itself. We find that considering the facts and circumstance of the present case the learned Commissioner (Appeals) ought not to have remanded the matter to the Adjudicating Authority particularly when the appellant have raised the ground on limitation. The impugned order is set aside and matter remanded to the Commissioner (Appeals) for passing fresh order on all the grounds made before him by the appellant - Appeal is allowed by way of remand to the Commissioner (Appeals). Issues involved: Whether the re-credit claimed by the appellant is correct under para 2C of area based exemption Notification No. 39/2001-CE dated 31.07.2001, and whether the Commissioner (Appeals) correctly remanded the matter instead of deciding finally on the issue of limitation.Analysis:1. The appeal questioned the correctness of the re-credit claimed by the appellant under para 2C of Notification No. 39/2001-CE dated 31.07.2001. The Learned Counsel for the appellant argued that the Commissioner (Appeals) exceeded the show cause notice's scope by directing reassessment after 12 years and keeping the show cause notice in abeyance. It was contended that the appellant complied with the provisions of the notification, and the re-credit should not be objected to. Additionally, it was highlighted that the proceedings after 5 years would be time-barred, as the re-credit under para 2-C was not disputed. The Order-In-Appeal acknowledged these facts and set aside the original order as premature. The appellant argued that the Commissioner (Appeals) erred in remanding the matter instead of deciding on the time bar issue conclusively.2. The appellant also raised the issue of the admissibility of refund/recredit of education cess and SHE cess at the relevant time, asserting that Section 11 A with a larger period was not invocable. Reference was made to the Supreme Court judgment in the case of SRD Nutrients Pvt Ltd, highlighting that the credit on education cess and SHE cess was allowed. Despite a subsequent contrary judgment in the case of Unicorn Industries, it was argued that the demand in this case was time-barred. Various decisions were cited to support this argument, emphasizing the appellant's position on the legality of the recredit claimed.3. The Revenue, represented by the Assistant Commissioner, reiterated the findings of the impugned order. Upon careful consideration of both sides' submissions and perusal of the records, the Tribunal found merit in the appellant's argument that the Commissioner (Appeals) should have conclusively decided the matter instead of remanding it. It was noted that the Commissioner's decision to remand the matter without addressing the limitation issue directly was prima facie incorrect. Given the circumstances and the appellant's ground on limitation, the Tribunal concluded that the matter should be decided finally by the Commissioner (Appeals) without remanding it to the Adjudicating Authority.4. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision on all grounds raised by the appellant. The appeal was allowed by way of remand to the Commissioner (Appeals) for a comprehensive reconsideration and final determination of the issues presented.This detailed analysis of the judgment provides a comprehensive overview of the issues raised, the arguments presented by both parties, and the Tribunal's decision to remand the matter for a fresh order by the Commissioner (Appeals).