TaxTMI 
TaxTMI 
2013 (10) TMI 627
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....e rewarehousing certificates from the subject consignments from the jurisdictional Central Excise Officer, the subject In-bond bills of entry were finally assessed by the Assistant Commissioner of Customs, Customs Division, Jamnagar vide the impugned Order-in-Original, under Section 18(2) of the Customs Act, 1962, confirming National Calamity Contingency Fund (NCCD) levied under Section 134 of Finance Act, 2003 as well as Education Cess (EC) and Secondary & Higher Secondary Education Cess (S&HEC) leviable thereon including on those quantity of Crude oil shown to have been excess received in the bonded warehouse and ordered for recovery of interest at appropriate rate on the said duties under Section 18(3) of Customs Act, 1962. Accordingly, on being aggrieved with the said impugned Order-in-Original, the respondent preferred appeals before the Commissioner (Appeals), who vide Order-in-Appeal, set aside the Order-in-Original as non- maintenable , which prompted the respondent to file refund claims, in respect of the amount paid by them towards the payment of NCCD and Cess , which vide impugned Order-in-Original, were sanctioned but the amounts sanctioned were transferred to Consumer ....
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....nkay (India) Rubber Co. Pvt.Ltd . - 2008 (224) ELT 393 (P&H) , has held that once the power of remand has been expressly taken away by the Finance Act, 2001, the Commissioner (Appeals) cannot remand the matter back to the adjudicating authority. It is his submission that identical view has been taken by Hon'ble High Court of Punjab & Haryana in another case of B.C. Kataria - 2008 (221) ELT 508 (P&H) . He would submit that the decision of Hon'ble Supreme Court in the case of MIL India Ltd. - 2007 (210) ELT 188 (SC) , is also on the same issue. It is his submission that various Benches of the Tribunal have also followed the judgment of the Hon'ble Apex Court in the case of MIL India Ltd and held that the Commissioner (Appeals) has no power of remand after the amendment to Section 128A of Customs Act, 1962 w.e.f . 11.05.2001. It is his submission that the remand order of the first appellate authority needs to be set aside and the matter should be remanded back to him for reconsidering the issue based upon the documentary evidences available on record in his file. 4.1 Secondly, on merit, It is his submission It is his submission it is case of captive consumption of crude palm oil impo....
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....tant had access to the said books of accounts and which books of accounts were examined by him. Therefore, reliance placed on such a ld. Chartered Accountant Certificate is risky and hazardous. 5. Ld.Counsel Shri J.C. Patel, Shri Vipin Kumar Jain, appearing on behalf of the respondent-assessee would take us through the impugned order. It is the submission that the entire issue is of academic nature only as the first appellate authority, in his findings, in the impugned order, at Para 8, has clearly recorded that the assessee has succeeded in establishing that the duty has not been passed on and has passed the hurdle of unjust enrichment. It is the submission that after giving categorical finding, the first appellate authority, in order to ensure that the refund which is sanctioned to the respondent is not expensed out and not recorded as expense due to considerable time gap, is directed to check out the correctness of quantification of the refund claim. It is the submission the findings of first appellate authority are very clear. He would submit that the decision of them Tribunal in the case of Reliance Communication Infra Ltd. - 2012 (279) ELT 85, Birla Tyres - 2004 (170) ELT 24....
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....ngle to it that even if it is felt that the matter needs remand by the first appellate authority, then also there is no contest by the Revenue on the findings recorded by first appellate authority on merit, in as much as the entire grounds of appeal of the Revenue only discusses about the amount being expensed for the manufacturing of final product. It is his submission that the respondents have demonstrated clearly that none of the amount has been expensed out or absorbed subsequently in the costing of the final product. 6. We have considered the submissions made at length by both sides and perused the records. 7. The grievance of the Revenue in the present appeal is twofold: i) that the Commissioner (Appeals) has erred in holding that the assessee had succeeded in establishing that the incidence of duty had not been passed on; and ii) that the Commissioner (Appeals) has erred in remanding the matter back to the lower authorities for re-verification even though the statute did not confer any power of remand upon the Commissioner (Appeals) 8. In the course of the arguments it was accepted by the counsel for the revenue that during the pendency of the ....
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....n 2012-TIOL-1317-CESTAT-DEL, and Commissioner of Central Excise vs Singh Alloys (P) Ltd., reported in 2012 (284) ELT 97, and Commissioner of Central Excise vs Vikram Dhawn, reported in 2012 (284) ELT 554 , by holding that the observations in MIL India's case are in the nature of passing remarks which cannot take proceedings over specific analysis of the relevant provisions and the findings thereon of the Supreme Court in the case of Umesh Dhaimode . The judgment of the Gujarat High Court in the case of Medico Labs was also taken note of and it has been held that the Commissioner (Appeals) still holds the power to remand matters. 11. In the present case, the observation made by the Commissioner (Appeals) in para 8 cannot be regarded as amounting to a remand. In the present case, the directions given by the Commissioner (Appeals) for re-verifying a few aspects of the matter with a view to safeguard the interest of the revenue cannot be considered as amounting to a remand to the lower authority. It is clear from the reading of para 7.23 and para 8 that all the issues which were in dispute and which constituted the lis between the revenue and the assessee have been finally and conclus....
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.... to these further directions of verification, these directions which are in any case beyond the scope of the proceedings and be struck off as unwarranted. 12. It is also relevant to note here that the directions contained in para 8 are not in the nature of remand as these directions only seek to check the quantification. The Tribunal, in the case of Commissioner of Service Tax vs Kbace Technologies Pvt. Ltd., reported in 2012 (280) ELT 526 ( Tri.Bang .) held that an order for quantification of refund is not a Refund Order. These directions should have amounted to remand, if any of the issues in dispute had been left unresolved by the Commissioner (Appeals) and sent back to the lower authority for a fresh decision or adjudication. This has not happened in the present case as all the issues raised by the Assistant Commissioner in the Adjudication Order have been decided conclusively by the Commissioner (Appeals) as is evident from paras 7.23 and 8 of the impugned order extracted above. 13. One of the other arguments on behalf of the revenue was that the Commissioner (Appeals) was not justified in relying entirely upon the certificate of Chartered Accountant for coming to the conclu....
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....fying the entries made in the books of account in the course of the year. The revenue, while alleging lacunas in the certificate presumes that accounts are drawn up only at the year end and not before that. This assumption is absurd as any assessee, particularly companies of the assessee's size and operations, would maintain regular books of account in the course of the year. The certificate of the Chartered Accountant dated 17.02.2009 clearly states that in the beginning itself that the said certificate was issued on verification of the books of account of the company. There is, therefore, nothing wrong in the CA's certificate. 15. The other discrepancy which has been pointed out in the revenue's appeal is that the assessee had initially claimed before the lower authority that it was not maintaining a bill of entry-wise ledger, though later on the auditor was able to give reconciliation between the balance sheet and the bill of entry. It was clarified by the counsel for the respondent that no ledger is ever maintained bill of entry wise and therefore the clarification given by the assessee to the lower authority was perfectly correct. This clarification, however, did not imply th....