2015 (9) TMI 1202 - AT - Central Excise

Wrongful availment of CENVAT Credit - Capital goods - Power of commissioner to remand back u/s 35A - Held that - Commissioner (Appeals) after analyzing the facts brought on record, opined that in the interest of justice, the actual use of the disputed items whether in structurals or otherwise need to be verified by the lower authority before passing any order in this regard. I do agree with the said proposition of the Ld. Commissioner (Appeals) and with the consent of both sides, the matter is remanded to the adjudicating authority for necessary verification as to whether the disputed items have been used as structural steels or otherwise - Decided in favour of Revenue.

Summary

Issues:
1. Admissibility of CENVAT Credit on items used in fabrication of structural items.
2. Power of the Ld. Commissioner (Appeals) to remand the case for verification of facts.

Admissibility of CENVAT Credit:
The appeal filed by the Revenue contested the Order-in-Appeal allowing the respondent to avail CENVAT Credit on items like Angles, Channels, Beams used in fabrication of structural items, arguing that such credit was not admissible as capital goods. The Ld. A.R. for the Revenue contended that the Ld. Commissioner (Appeals) erred in remanding the matter for verification of facts, stating that the Commissioner lacked the authority to do so under the amended section of the Central Excise Act, 1944. However, the Ld. Advocate for the Respondent cited a previous Tribunal judgment to support the Commissioner's power to remand cases for fact verification. After hearing both parties and examining the records, the Judicial Member agreed with the Ld. Commissioner (Appeals) that verification of the actual use of the disputed items was necessary before passing any order. Consequently, the matter was remanded to the adjudicating authority for verification as to whether the items were indeed used as structural steels or otherwise, ultimately disposing of the appeal accordingly.

Power of the Ld. Commissioner (Appeals) to Remand:
The central issue revolved around the authority of the Ld. Commissioner (Appeals) to remand the case for verification of facts. The Ld. A.R. for the Revenue argued against the Commissioner's power to remand, citing the amended section of the Central Excise Act, 1944. Conversely, the Ld. Advocate for the Respondent relied on a previous Tribunal judgment to support the Commissioner's authority in remanding cases for fact verification. The Judicial Member, after considering the arguments from both sides and reviewing the facts, supported the Ld. Commissioner (Appeals)' decision to remand the case for verification, emphasizing the importance of ascertaining the actual use of the disputed items before making any determinations. This analysis highlights the significance of the Commissioner's discretion in remanding cases for further investigation, ensuring a just and informed decision-making process within the legal framework.