2011 (7) TMI 345 - AT - Central Excise

Cenvat credit - Avail credit through fake invoices - As the ratio in the recent judgment in the case of M/s. Bhagwati Silk Mills and Others Vs. CCE Surat- 2011 -TMI - 203593 - CESTAT, AHMEDABAD wherein the Tribunal in its order remanded the case to the original adjudicating authority or fresh decision - The case is remanded accordingly to the original adjudicating authority for fresh decision.

Summary

Issues:
1. Condonation of delay in filing appeal by the Revenue.
2. Appeal against the Commissioner (Appeals) order remanding the case to the original adjudicating authority.

Analysis:

Issue 1: Condonation of Delay
The Commissioner of Central Excise & Customs filed an application for condonation of delay in the appeal against a company under Section 35B of the Act. The delay was attributed to vacant positions of Commissioners and the assumption of additional charge by another Commissioner. The delay was only for five days, and considering the circumstances, the delay in filing the appeal by the Revenue was condoned by the Tribunal.

Issue 2: Appeal Against Remand Order
The appeal filed by the Revenue was against the Commissioner (Appeals) order remanding the case to the original adjudicating authority. The Revenue contended that the Commissioner (Appeals) did not have the power to remand the case as per the Board's instructions. The Tribunal noted that similar cases of fake invoices had been remanded for fresh decision previously. Referring to a specific judgment, the Tribunal highlighted the reasoning for remanding cases in the interest of justice, emphasizing the need for verification of facts and supplying demanded documents. The Tribunal decided to remand the case to the original adjudicating authority for a fresh decision, without delving into the merits of the case or other issues involved.

In conclusion, the Tribunal upheld the condonation of delay in filing the appeal by the Revenue and remanded the case to the original adjudicating authority for a fresh decision, following the principles of justice and previous judgments on similar matters.