2012 (5) TMI 430 - AT - Central Excise

Legality of remand order passed by Commissioner - CENVAT Credit on electric cables and wires - Commissioner without giving any finding on the case laws cited by appellant, remanded the matter to lower authority after concluding that assessee is not entitled for credit - Held that - Commissioner is not empowered to remand the case to the lower Adjudicating Authority, after the amendment of Section 35A and the Supreme Court s decision in the case of MIL India Ltd. vs. CCE, Noida (2007 (3) TMI 8 (SC)). In these circumstances, we direct Commissioner (Appeals) to decide the case afresh, while taking into consideration the case laws cited by the Appellant without insisting for predeposit.

Summary

Issues:
1. Application for waiver of predeposit of duty amounting to Rs.9,24,656.24.
2. Disposal of Appeal without predeposit.
3. Contention regarding CENVAT Credit on electric cables and wires.
4. Interpretation of Notification No.14/96-CE(NT) dated 23.07.96.
5. Authority's power to remand the case post-amendment of Section 35A.

Analysis:

1. The Applicant filed an Application seeking waiver of predeposit of duty amounting to Rs.9,24,656.24. After hearing both sides, the Tribunal found that the Appeal itself could be disposed of without the need for predeposit. Thus, the Tribunal decided to take up the Appeal for disposal without requiring the predeposit.

2. The Appellant contended that the learned Commissioner had remanded the case to the lower Adjudicating Authority without giving any finding on the case laws cited by them regarding CENVAT Credit on electric cables and wires. The Appellant argued that they were entitled to the CENVAT Credit based on relevant case laws. On the other hand, the Department argued that Notification No.14/96-CE(NT) dated 23.07.96 disallowed the CENVAT Credit on electric wires and cables from 23.07.96.

3. The Tribunal noted that the learned Commissioner had remanded the case without providing any findings on the case laws cited by the Appellant, including the Supreme Court's decision in the case of Jawahar Mills and other relevant decisions. The Tribunal also observed that the learned Commissioner lacked the authority to remand the case post-amendment of Section 35A and in light of the Supreme Court's decision in the case of MIL India Ltd. vs. CCE, Noida. Consequently, the Tribunal directed the Commissioner to decide the case afresh, considering the case laws cited by the Appellant, without insisting on predeposit, and ensuring a reasonable opportunity of hearing for the Appellant.

4. In conclusion, the Tribunal allowed the Appeal by way of remand, directing the Commissioner to reconsider the case in accordance with the cited case laws and without the need for predeposit. The Stay Petition was also disposed of accordingly. The judgment was dictated and pronounced in open court by the Tribunal.