2023 (12) TMI 490 - AT - Customs

Commissioner Appeals must decide Clean Energy Cess refund case on merits instead of improper remand

CESTAT Ahmedabad ruled on a refund dispute concerning Clean Energy Cess paid in cash alongside DEPB scrip debits. The tribunal found that the Commissioner ... Refund of the Clean Energy Cess paid by them in cash in addition to the debits made through DEPB scrips - Power of Commissioner (Appeals) to remand. Refund of the Clean Energy Cess paid by them in cash in addition to the debits made through DEPB scrips - HELD THAT:- It is noticed that revenue has field cross objections on the ground that the Commissioner (Appeals) has no power to remand. The Commissioner (Appeals) has not dealt with the issue on merits. While remanding the Commissioner (Appeals) has observed I find that the adjudicating authority had concluded that their application for revalidating the DEPB licence is lying alive before the PRC. I find the aforesaid facts and issues need proper verification and re examination by the original authority - thus, It is seen that the Commissioner (Appeals) has not examined the issue on merits and therefore the said order cannot be sustained. Power of Commissioner (Appeals) to remand - HELD THAT:- The issue becomes infructuous, as there was no need to remand the matter. The Commissioner (Appeals) to decide the issue on merit - the order ser aside and matter remitted back to the Commissioner (Appeals) to decide the issue of the refund on merits. Appeal disposed off. Issues:The judgment involves issues related to the utilization of Duty Entitlement Pass Book (DEPB) scrips for payment of Clean Energy Cess and the power of remand of the Commissioner (Appeals).Utilization of DEPB Scrips for Clean Energy Cess:The appeals were filed by the Revenue against the Commissioner (Appeals) allowing the use of DEPB scrips for Clean Energy Cess payment. The Tribunal referred to a previous order that allowed such utilization. The Commissioner (Appeals) reasoned that Clean Energy Cess, being equivalent to duty of excise, could be paid in cash or through DEPB scrips. The Commissioner (Appeals) also highlighted that there were no restrictions on DEPB scrip usage for Clean Energy Cess. The Tribunal dismissed the appeals by the Revenue as the issue was already decided previously.Refund of Clean Energy Cess Paid:Welspun Steel Ltd sought a refund of Clean Energy Cess paid in cash in addition to debits made through DEPB scrips. The matter was remanded back to the Adjudicating Authority for verification of facts. The issue of the power of remand by the Commissioner (Appeals) was raised by the Revenue. The Tribunal held that the Commissioner (Appeals) did not address the issue on merits and remanded the matter. The Tribunal cited a case to support the power of remand by the Commissioner (Appeals). The Tribunal set aside the order and remitted the matter back to the Commissioner (Appeals) to decide on the refund issue on merits.Conclusion:The appeals filed by the Revenue were dismissed, and the appeal by Welspun Steel Ltd was allowed for remand to the Commissioner (Appeals) to decide on the refund issue. The cross objections filed by the Revenue were disposed of, with a directive for the Commissioner (Appeals) to decide the matter within three months.