2016 (11) TMI 1095 - AT - Central Excise

Area based exemption - Eligibility to the benefit of Notification No.39/2001-CE, dt.31.07.2001 - installation of plant and machinery prior to and after 31.12.2005 - Held that - the issue has been settled by Hon ble Gujarat High Court in the case of SAURASHTRA FERROUS PVT. LTD. Versus UNION OF INDIA 2015 (1) TMI 539 - GUJARAT HIGH COURT , where it was held that if, the unit/plant and machineries have been commissioned/installed (Fully) prior to 31-12-2005, the petitioner may be entitled to the benefits contained in the aforesaid Notification, on manufacture/production of cast iron articles for a period of five years from the date of commencement of the first commercial production of such goods on such unit. Therefore, in the interest of justice, it is prudent to remit the matter to the Adjudicating authority to decide the refund claims afresh in accordance with the principle of law laid down in the aforesaid decision of the Hon ble Gujarat High Court and the observations recorded by the learned Commissioner (Appeals) in the impugned order - a reasonable of opportunity of hearing granted to the Appellant - appeal disposed off by way of remand.

Summary

Issues:
Eligibility of benefit under Notification No. 39/2001-CE for industrial unit set up after 31.07.2001 - Refund claims filed by Appellant - Restriction of refund by Adjudicating authority - Appeal before Commissioner (Appeals) - Remand order challenged before Tribunal.

Analysis:
The case involved the Appellant setting up a new industrial unit in Gujarat after 31.07.2001, certified by a Committee for the benefit under Notification No. 39/2001-CE. The Appellant filed refund claims for the period April 2007 to February 2008. The Adjudicating authority partially allowed the claims, restricting the refund due to lack of data on production from machineries installed before 31.12.2005. The Commissioner (Appeals) remanded the case, disagreeing with the Adjudicating authority's reasoning and lack of factual determination on the date of capacity addition.

The learned Representative for the Revenue cited precedents, including a case before the Gujarat High Court and a Tribunal decision, to argue against the Appellant's challenge to the remand order. The High Court's decision clarified that production from machineries installed after 31.12.2005 is not eligible for the Notification's benefit. The Representative had no objection to remanding the case for a fresh determination considering production facts before and after 31.12.2005.

The Tribunal concurred with the Revenue's Representative, acknowledging the settled issue by the High Court regarding the Notification's eligibility concerning machinery installation dates. To ensure justice, the Tribunal remitted the matter to the Adjudicating authority for a fresh decision in line with the High Court's ruling and the Commissioner (Appeals) observations, granting the Appellant a reasonable opportunity for a hearing. All issues were kept open, and the appeal was disposed of through remand to the Adjudicating authority.