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TMI Blog2015 (8) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept, which legal plea is in favour of the appellant before lower Authorities. - opportunity as sought for by the appellant should have been granted by the Tribunal to enable them to put forward its case. The plea of prejudice is apparent and the counsel has shown bona fides for his absence. - matter remanded back - Decided in favour of assesssee. - C.M.A. No. 1170 of 2015 M. P. No. 1 of 2015 - - - Dated:- 25-6-2015 - R. Sudhakar And K. B. K. Vasuki, JJ. For the Appellant : Mr. G Derrick Sam For the Respondent : Mr. A P Srinivas R1 JUDGMENT (Delivered By R. Sudhakar, J.) This Civil Miscellaneous Appeal is filed by the assessee as against the order passed by the Tribunal raising the following substantial qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .8/99 dated 28.2.1999 and option to pay full rate of duty with Modvat benefit. Accordingly, permission was granted under C.No.IV/16/148/99-T3 dated 19.4.1999. However, the said permission was sought to be withdrawn vide Show Cause Notice dated 3.5.2000 with consequential demand of differential duty of ₹ 7,02,609/- under Section 11A of the Central Excise Act, 1944. The Adjudicating Authority, after due process of law, dropped the proceedings initiated against the assessee. Aggrieved by the said order of adjudication, the Revenue preferred review before the Commissioner of Central Excise for filing an appeal before the Commissioner (Appeals). The Commissioner passed an order directing the Assistant Commissioner of Central Excise, Pondic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of doctrine of merger. In this case, the Tribunal also considered the availment of modvat facility as well as full exemption simultaneously in the case of same specified goods. The Tribunal said drawing the similar analogy, we consider that subject to the reversal of the modvat credit taken with regard to the inputs which were utilised for the manufacture of duty free goods, the manufacturer could avail of the modvat credit as well as the full duty exemption under the applicable small scale exemption Notification with regard to the same specified goods . Respectfully following the ratio of the above decision I uphold the order-in-original passed by the lower authority and dismiss the Revenue appeal. Appeal dismissed. 3. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1.12 No DB sitting Adjourned to 30.1.12. 30.1.12 Allowed. Amount of ₹ 7,02,609/- with interest confirmed. 4. On 30.1.2012, the Tribunal had passed an order allowing the appeal filed by the Department holding as follows: 2. The question involved in this case is whether the respondents can avail Cenvat Credit as well as full exemption under the SSI exemption scheme in respect of same goods. The issue now seems to be no longer res integra, as it has been given a finality by the Hon'ble Supreme Court in the case of CCE, Admedabad Vs. Ramesh Food Products reported in 2004 (174) ELT 310 (S.C). In the said case, it has been held by the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... junior Mr.Vijayabalan to adjourn the matter stating that there is a bereavement in the family of Mr.Hari Radhakrishnan, learned counsel on record and that he had gone to Trivandrum. The said junior counsel has filed an affidavit before us to this effect and supporting document, namely, travel tickets of Mr.Hari Radhakrishnan evidencing the travel. This is enclosed as document in page Nos.88 to 91 of the typed set of papers before us. He also submits that the case was adjourned from time to time for various reasons and not due to the non-cooperation of the appellant. The case of Nebula Health Care was pending before the Supreme Court and hence adjournment was effected time to time. For some strange reasons, the Tribunal following another de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the Commissioner (Appeals) have held in favour of the assessee and there is no discussion on merits on the decision rendered by the lower authorities. The Tribunal, the final fact finding Authority, should go into the merits of the case of the assessee/appellant and render a finding, if not inclined to accept, which legal plea is in favour of the appellant before lower Authorities. Hence, we are of the view that the opportunity as sought for by the appellant should have been granted by the Tribunal to enable them to put forward its case. The plea of prejudice is apparent and the counsel has shown bona fides for his absence. The Department counsel, on verification, has no serious objection to the said plea. 10. In the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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