2017 (2) TMI 58

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....as 'the Tribunal' for the sake of brevity), so far as it relates to making observations after having found that the exemption was available to the appellant on the Diesel Generating Sets (hereinafter referred to as 'DG sets ' for the sake of brevity) sold to Horticulture University. We have heard Mr. K.S. Jain, party-in- person/appellant and Mr. Jeevan J. Neeralgi, learned Counsel for the respondent. 3. We may record that the appellant has preferred the appeal by raising 4 substantial questions of la w. But, in our view, only one question of law may arise and the same can be at question No.1 in the memorandum of appeal, which reads as under:- "1. Whether the Hon'ble Tribunal-CESTAT, Bengaluru is justified in making unwanted and unjust....

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....ter further appeal was preferred before the Tribunal by the appellant and in the said appeal by the impugned order, the Tribunal found that the exemption was available to the appellant and allowed the appeal to that extent. However, the Tribunal made further observations, which reads as under:- "4. ............... .... Further inasmuch as the exemption is being held in favour of the assessee, as a consequence, the assessee would to be entitled to the cenvat credit of duty paid on various inputs used in the manufacture of DG sets. As such the lower authorities would examine as to whether the appellant has availed wrong cenvat cred it and the appellant would be duty bound to reverse the same......." In the circumstances, the appellant h....

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.... in question. However the benefits stand denied by the lower authority on the sole ground that DG sets cannot be considered to be Scientific and Technical Instruments or Apparatus or Equipments etc." When the issue was only limited to the entitlement of exemption available to the appellant - assessee or not, the Tribunal ought to have limited its judicial scrutiny to that extent only. The Tribunal Could have examined the aspects only in two contingencies. (1) if there was any cross appeal by the Department, which was not there; and (2) such aspects was also examined by the first authority, which had issued the show cause notice. When the first authority which had issued the show - cause notice and confirmed the demand, it did not examine....