2006 (9) TMI 112 - AT - Central Excise

Direction of the Superintendent to reverse the credit is in the nature of a decision and hence appealable to Commissioner (Appeals) in terms of Section 35 - appeal by the Department is dismissed with the observation that the issue raised in the letter of Superintendent addressed to the assessee should be disposed off by the concerned jurisdictional Assistant Commissioner/Deputy Commissioner after observing principles of natural justice including issue of show cause notice

Summary

Issues Involved:
- Appeal against Commissioner (Appeals) order
- Consideration of appeal by the assessee
- Remand of the matter by Commissioner (Appeals)

Analysis:

1. Appeal against Commissioner (Appeals) order:
The appellate tribunal considered the appeal by the department against the order of the Commissioner (Appeals) Order No. AT/222/RGD/2005. The tribunal noted that the direction given by the Superintendent to reverse the credit is appealable to the Commissioner (Appeals) as per Section 35 of the Central Excise Act, 1944. The tribunal ultimately dismissed the appeal by the department, emphasizing that the issue raised in the Superintendent's letter should be decided by the jurisdictional Assistant Commissioner/Deputy Commissioner after following principles of natural justice, including the issuance of a show cause notice.

2. Consideration of appeal by the assessee:
The tribunal addressed the question of whether the Commissioner (Appeals) erred in considering an appeal filed by the assessee against the letter issued by the department. It was observed that the Commissioner (Appeals) had remanded the matter back for re-adjudication, directing that the principles of natural justice should be followed. The tribunal highlighted that the Commissioner (Appeals) had the authority to consider the appeal and that the matter should be re-adjudicated following due process.

3. Remand of the matter by Commissioner (Appeals):
The tribunal examined whether the Commissioner (Appeals) erred in remanding the matter without specifying the adjudicating authority authorized to decide the issue. It was noted that the Commissioner (Appeals) had directed a re-adjudication of the matter after following the principles of natural justice. The tribunal emphasized that the concerned jurisdictional Assistant Commissioner/Deputy Commissioner should decide the issue, ensuring that the principles of natural justice are upheld, including the issuance of a show cause notice. The tribunal upheld the decision of the Commissioner (Appeals) in this regard.

In conclusion, the appellate tribunal dismissed the appeal, affirming the decision of the Commissioner (Appeals) to remand the matter for re-adjudication by the appropriate adjudicating authority while upholding the principles of natural justice and the procedural requirements under the Central Excise Act, 1944.