2011 (2) TMI 641 - AT - Central Excise

Transmission assembly captively used in the manufacture of exempted tractors - Appellants is justified in making grievance about non-consideration of the certain material available on record and which could support the case of the appellants and which was collected by the Department itself - If that is the case certainly it is unfair on the part of the Commissioner to ignore the same and not to furnish copies thereof to the appellants before deciding the matter - It has been informed that the appellants have already obtained copies thereof while exercising their right under Right To Information Act - In the circumstances while deciding the matter afresh it would be appropriate for the Commissioner to take into consideration all the materials to be placed on record and therefore liberty to the parties to place on record any such further evidence which they may desire to place on record provided that it is relevant for the decision.

Summary

Issues:
1. Challenge to Commissioner's order on remand ignoring rectification order.
2. Justification of impugned order based on pending issue before High Court.
3. Contradiction between Commissioner's decision and Tribunal's findings on modvat credit.
4. Application of Union of India vs. Kamlakshi Finance Corporation Ltd. decision.
5. Commissioner's failure to consider material supporting appellant's case.

Analysis:

1. The appeal before the Appellate Tribunal challenged the Commissioner's order, arguing that the Commissioner erred in deciding the matter on remand while ignoring the rectification order passed by the Tribunal. The issue arose from the Commissioner's decision regarding the recovery of excise duty on transmission assemblies used in manufacturing exempted tractors.

2. The Departmental Representative (DR) justified the impugned order by pointing out the pendency of a related issue before the High Court, suggesting that the Commissioner's decision was based on a previous Tribunal decision. The argument centered on the relevance of the issue pending before the High Court in the party's case.

3. The Tribunal noted a contradiction between the Commissioner's decision and the Tribunal's findings on the availment of modvat credit for the relevant period. Despite the issue pending before the High Court, the Commissioner's decision was deemed contrary to the specific findings in the case and the terms of the remand order.

4. Referring to the decision in Union of India vs. Kamlakshi Finance Corporation Ltd., the Tribunal emphasized the obligation of lower authorities to follow the orders of higher appellate authorities, even if they have reservations. The Tribunal found the Commissioner's decision unsustainable and expressed displeasure for acting contrary to the Tribunal's order.

5. Additionally, the Tribunal highlighted the Commissioner's failure to consider material supporting the appellant's case, which was collected by the Department itself. The Tribunal deemed it unfair for the Commissioner to ignore such material and not provide copies to the appellants before deciding the matter, emphasizing the importance of considering all relevant evidence.

In conclusion, the Tribunal set aside the impugned order and remanded the matter to the Commissioner for a fresh decision, instructing the Commissioner to consider all relevant evidence and previous decisions in accordance with the law. The appeal was disposed of accordingly.