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2011 (6) TMI 609 - AT - Central ExciseCENVAT credit - lower adjudicating authority sanctioned the refund claim through CENVAT credit since the reversed was made through CENVAT credit - Commissioner (Appeals) was whether refund can be sanctioned through cash or by credit in CENVAT Credit account. However, instead of deciding the issue he sat over the Tribunal s aforesaid order, which is clear form the above finding. It is no one s case that the department has challenged the said order at any stage Held that - order of the Commissioner (Appeals) is not sustainable as he has not appreciated the issue involved. Therefore, the issue requires reconsideration. matter remanded to Commissioner (Appeals. Appeal is allowed by way of remand
Issues:
1. Challenge against Order-in-Appeal remanding the case back to lower adjudicating authority. 2. Availability of CENVAT credit on defective capital goods. 3. Power of remand by Commissioner (Appeals) post amendment of Section 35A. 4. Refund sanction through cash or credit in CENVAT Credit account. Issue 1: Challenge against Order-in-Appeal remanding the case back to lower adjudicating authority: The appellant filed an appeal against the Order-in-Appeal remanding the case back to the lower adjudicating authority for re-examining the issue of availing CENVAT credit on defective capital goods. The Tribunal had earlier decided in favor of the appellant, leading to a refund claim being filed. The lower adjudicating authority sanctioned the refund claim through CENVAT credit. The Commissioner (Appeals) remanded the matter for de novo consideration, which was challenged in the appeal. Issue 2: Availability of CENVAT credit on defective capital goods: The case revolved around the eligibility of the appellant to avail CENVAT credit on defective capital goods. The original show-cause notice was issued based on the premise that transit insurance for damages was claimed by the appellants, indicating that the defective capital goods might not have been used in the factory of production, thus affecting their eligibility for CENVAT credit. The Tribunal's order allowed the availment of CENVAT credit without delving into the eligibility criteria, citing the absence of relevant legal provisions at the time. The Commissioner (Appeals) remanded the case back to the lower adjudicating authority for re-examination based on the eligibility criteria. Issue 3: Power of remand by Commissioner (Appeals) post amendment of Section 35A: Both the learned Counsel and learned JDR agreed that the power of remand has been curtailed from the Commissioner (Appeals) post the amendment of Section 35A. The Commissioner (Appeals) remanded the case without considering the limitations imposed by the amended provision, which led to the appeal challenging the sustainability of the Order-in-Appeal. Issue 4: Refund sanction through cash or credit in CENVAT Credit account: The issue arose whether the refund could be sanctioned through cash or credit in the CENVAT Credit account. The Commissioner (Appeals) failed to address this specific issue and instead remanded the case back to the lower adjudicating authority, overlooking the fact that the power of remand by the Commissioner (Appeals) had been restricted post the amendment of Section 35A. The order was deemed unsustainable as it did not adequately appreciate the issue at hand, necessitating a reconsideration with a reasonable opportunity of hearing for both parties. In conclusion, the judgment highlighted the complexities surrounding the availment of CENVAT credit on defective capital goods, the limitations on the power of remand by the Commissioner (Appeals) post the amendment of Section 35A, and the need for a thorough examination of issues before remanding cases for reconsideration.
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