2011 (3) TMI 1126 - AT - Central Excise

Eligibility for Cenvat credit - Service tax paid on outward freight - Held that - The Commissioner (Appeal) has seen sample invoices and a certificate from a Chartered Accountant and prima facie verified the issues relevant to the matter and he has given a clear finding that the Respondent is eligible for the credit and thus reversed the order of the Adjudicating authority - However he has given an opportunity to the lower authority to verify the records more exhaustively and to modify the quantum of credit allowed by him if the principle explained by him is not satisfied in respect of any individual invoice - it is likely that the adjudicating authority has not done any verification so far since they have filed an Appeal before this Tribunal. So the adjudicating authority is given time of two months from the date of receipt of this order to do any exhaustive verification as ordered by the Commissioner (Appeal) if he desire to do.

Summary

Issues:
1. Commissioner (Appeal) remanding the matter for decision under section 35A of the Central Excise Act.
2. Eligibility for Cenvat credit on service tax paid on outward freight.
3. Interpretation of Rule 2(l)(ii) of Cenvat Credit Rules, 2004.
4. Department's contention on remand.
5. Commissioner (Appeal)'s order on credit allowed and disallowed.
6. Department's argument on verification responsibility.
7. Tribunal's decision on the impugned order.
8. Adjudicating authority's verification process.

Analysis:
1. The department contested that the Commissioner (Appeal) had no power to remand a case under section 35A of the Central Excise Act, relying on the decision in MIL India Vs. CCE Noida-2007. The issue was whether the Commissioner (Appeal) had the authority to remand a matter for decision.

2. The main issue was the eligibility for Cenvat credit on service tax paid on outward freight for a specific period. The question revolved around whether such credit qualified as an input service as per Rule 2(l)(ii) of the Cenvat Credit Rules, 2004.

3. The Commissioner (Appeal) allowed credit on certain amounts subject to verification, while disallowing and ordering recovery on other amounts related to outward freight. The department argued that the order effectively remanded the matter for verification, which they believed should have been done by the Commissioner (Appeal) himself.

4. The Tribunal found no issue with the impugned order, stating that the Commissioner (Appeal) had made a reasonable decision after verification. The opportunity given to the department was for exhaustive verification and correction of any errors in the credit allowed, not a remand of the matter.

5. The Tribunal directed the adjudicating authority to conduct further verification within a specified timeframe. If the authority found discrepancies, they were to issue a notice to the Respondent for denial of credit. Failure to issue such a notice would result in the Commissioner (Appeal)'s order becoming final.

6. The Tribunal disposed of the appeal based on the terms outlined in the judgment, emphasizing the importance of thorough verification by the adjudicating authority to ensure the correctness of the credit allowed.