2011 (6) TMI 413 - AT - Central Excise

Denial of cenvat credit - Penalty - ex-parte order - Held that - The assessee filed detailed submission before the Commissioner (Appeals) and he has held that the same require factual verification and therefore remanded the matter to the original authority. However, it is settled law that the Commissioner (Appeals) has no power of remand after 11.5.2001, and therefore the order of the Commissioner (Appeals) cannot be allowed to survive. The grounds on which the Commissioner (Appeals) wanted the matter to be considered by the original authority afresh are valid - set aside the order of the Commissioner (Appeals) and the order of the original authority insofar as the same related to denial of cenvat credit to the respondents and remand the matter to the original authority for fresh consideration.

Summary

Issues:
- Denial of credit and imposition of penalty by the original authority without proper opportunity given to the appellant.
- Validity of the Commissioner (Appeals) remanding the matter after the amendment to section 35A.
- Conduct of the respondents during adjudication proceedings and the power of the Commissioner (Appeals) to remand the case.

Analysis:
The Appellate Tribunal CESTAT, Delhi addressed the issue of denial of credit and imposition of penalty by the original authority against the appellant. The original authority had denied credit and imposed a penalty due to the appellant's failure to provide a reply despite ample opportunities and non-appearance for a personal hearing. The Commissioner (Appeals) remanded the matter, emphasizing the lack of proper opportunity granted to the appellant for presenting their case. The Tribunal acknowledged the validity of the grounds raised by the Commissioner (Appeals) for reconsideration and set aside the orders of both the original authority and the Commissioner (Appeals) regarding the denial of cenvat credit. The matter was remanded to the original authority for fresh consideration.

Regarding the validity of the Commissioner (Appeals) remanding the matter after the amendment to section 35A, the Tribunal considered the argument presented by the learned SDR, asserting that the Commissioner (Appeals) lacked the power of remand post the amendment. Citing the Supreme Court's decision in the case of Mil India Ltd. vs. CCE, Noida, the Tribunal acknowledged the limitation on the Commissioner (Appeals) in issuing a remand order. Despite this, the Tribunal found the grounds for remand raised by the Commissioner (Appeals) to be valid and therefore set aside the remand order.

The Tribunal also addressed the conduct of the respondents during the adjudication proceedings. It noted the delay in submitting a reply before the original authority and the subsequent request for another opportunity to establish their eligibility for cenvat credit. While acknowledging the respondents' conduct as lacking in cooperation, the Tribunal agreed with the grounds for reconsideration provided by the Commissioner (Appeals) and remanded the matter for fresh consideration by the original authority. The Tribunal directed the respondents to file a reply within 45 days and appear before the original authority for further proceedings. The original authority was instructed to pass a new order preferably by a specified date.

In conclusion, the Tribunal emphasized the importance of providing a fair opportunity for the appellant to present their case and directed a fresh consideration of the denial of cenvat credit by the original authority, setting aside the previous orders and remanding the matter for proper adjudication.