2012 (8) TMI 291 - AT - Central Excise

Challenge of remand of the matters by the first appellate authority - Held that - As decided in MIL INDIA LTD. Versus COMMISSIONER OF C. EX., NOIDA 2007 (3) TMI 8 - SUPREME COURT OF INDIA the first appellate authority should have decided the issue as per the provisions of Central Excise Act, 1944 by looking into the documentary evidences available to him and does not have the powers to remand the matter back to the adjudicating authority - the impugned remand order is unsustainable.

Summary

Issues:
1. Authority of the first appellate authority to remand the matter back to the adjudicating authority.
2. Interpretation of the judgment in the case of Mill India Ltd.
3. Power of the Commissioner (Appeals) to remand the matter.

Analysis:
1. The appeal challenged an order remanding the matter back to the adjudicating authority for reconsideration of the denial of cenvat credit. The departmental representative argued that the first appellate authority should have decided the issue based on the provisions of the Central Excise Act, 1944, without the power to remand. Reference was made to the decision of the Hon'ble Supreme Court in the case of Mill India Ltd., supporting the argument against remand.

2. The appellant's counsel cited the decision of the Hon'ble High Court of Gujarat in the case of Medico Labs, emphasizing the Commissioner (Appeals)'s power to remand even after an amendment to Section 11AC of the Central Excise Act, 1944. Additionally, the counsel referred to a Tribunal case, Bacha Motors (P) Ltd., which held a contrary view to the Supreme Court's decision in Mill India Ltd., considering it as a passing observation.

3. The presiding judge, Mr. M.V. Ravindran, analyzed the conflicting views and concluded that the consistent application of the judgment in the case of Mill India Ltd. was appropriate. The judge noted that the Apex Court's decision was not presented in the case of Medico Labs before the High Court, influencing the judge's decision to follow the Supreme Court's ruling. Consequently, the impugned order remanding the matter was deemed unsustainable and set aside.

4. However, in the interest of justice, the judge recognized the necessity to verify the eligibility of credit for items/inputs utilized by the appellant in the factory premises. The judge emphasized that this verification should be conducted by the adjudicating authority, considering the factual evidence presented. Therefore, the matter was remanded back to the adjudicating authority for reconsideration, ensuring the principles of natural justice were followed.

5. Ultimately, the appeal was disposed of, with the judgment highlighting the limitations on the first appellate authority's power to remand matters and the importance of thorough verification by the adjudicating authority in determining credit eligibility based on factual evidence.