2011 (6) TMI 421 - AT - Central Excise

Power of remand - Commissioner(Appeals) remanded the matter without any specific averment on the factual position as to whether the respondents shall be eligible for the credit - Held that - If the matter is to be decided by the Commissioner (Appeals) or by the Tribunal, in the nature of dispute, it becomes necessary to involve the original authority and his staff from the department side for conducting necessary verification. Commissioner (Appeals) does not have power of remand. Order of the Commissioner (Appeals) Set aside, matter remanded to the original authority for fresh consideration

Summary

Issues:
Appeal against remand order by Commissioner (Appeals) for fresh consideration of credit eligibility on certain items.

Analysis:
The appeal before the Appellate Tribunal CESTAT, DELHI was filed by the department challenging the order-in-appeal dated 20.2.2004, where the Commissioner (Appeals) remanded the matter for fresh consideration regarding the eligibility of credit on specific inputs. The department contended that the Commissioner (Appeals) lacked the power of remand, citing a precedent from the Hon'ble Supreme Court. The disputed items included pickling preparations, fluxes, wire rods, tubes, electrodes, flat rolled products of iron, steel, and alloy steel, among others. The Commissioner (Appeals) found that certain items were used for manufacturing capital goods within the factory premises, making them eligible for credit, while items used for repair and maintenance or outside the factory were not admissible for credit.

The Tribunal noted that the department did not provide specific details in the grounds of appeal regarding the eligibility of credit on the mentioned items. The Tribunal considered various options, including deciding the matter themselves, directing the Commissioner (Appeals) to decide with assistance from the original authority, or involving the original authority for verification. Acknowledging that the Commissioner (Appeals) lacked the power of remand, the Tribunal set aside the order related to disputed credit items and remanded the matter to the original authority for fresh consideration, ensuring a fair hearing for the respondents. The Tribunal emphasized the need for proper verification and involvement of the original authority in resolving the issue, ultimately disposing of the appeal in line with the remand decision.

In conclusion, the judgment focused on the Commissioner (Appeals)'s remand order for fresh consideration of credit eligibility on specific items, highlighting the need for proper verification and involvement of the original authority in resolving the dispute. The Tribunal's decision to set aside the remand order and remand the matter to the original authority for a fair hearing demonstrates the importance of procedural fairness and thorough examination of factual details in tax matters.