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TMI Blog2016 (11) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue including the issues of interest and penalty, the Commissioner shall provide an opportunity of hearing to the appellant as per law. Ld. Counsel has assured that full cooperation will be extended to the adjudicating authority. Credit amounting to 2,73,450/- availed on invoices not issued in the name of appellant - Held that: - it appears that the issue needs fresh adjudication. Accordingly, we remand the matter back to the adjudicating authority to verify the ECC code and address and utilisation of the credit and use of the goods. These factual aspects are not emerging from the impugned order. Hence, we set-aside the impugned order and remand the matter to the adjudicating authority on this issue who will decide denovo after providing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals). Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent financial year, then no prejudice is caused to the Revenue and the decision of the Tribunal deserves acceptance." By following the ratio laid-down by the Bombay High Court, as the facts are not clear in the impugned order, we set-aside the impugned order and remand the matter back on this issue to the adjudicating authority to decide the issue of utilisation of cenvat credit which was wrongly availed by the appellant in the first year. On this issue including the issues of interest and penalty, the Commissioner shall provide an opportunity of hearing to the appellant as per law. Ld. Counsel has assured that full cooperation will be extended to the adjudicating authority. 4. The next issue is pertaining to the credit amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee has utilised these items in the manufacture of cage for PMCC (P), MCC, Panels, Grid Rotor Resistance etc. which are stated to be capital goods. The period is after 07.07.2009, when by introducing the amendment to the definition in Rule 2(k) of the Cenvat Credit Rules, 2004, the position has been changed and thereafter benefit is not admissible. During the course of arguments, ld. Counsel submits that the said explanation (amendment) is not applicable to the assessee s case as his case is falling under Rule 2(a)(A)(iii) of the Cenvat Credit Rules (CCR), which relates to the component, spares and accessories of the goods specified at 2(a)(A) (i) and (ii) of the CCR. 6.1 After hearing the parties and on perusal of the record, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 726 (Guj.) where it was observed that- "8. Ld. Counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited vs. Commissioner of Central Excise, Raipur -2010 (253) ELT 440. We have carefully gone through the decision of the Larger Bench of the Tribunal. We do not find that amendment made in Cenvat Credit Rules, 2004 which come into force on 7.7.2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery, silos etc. Further, he submits that credit on cement has been availed only during the period prior to 07.07.2009. 8.1 On the other hand, ld. AR for the Revenue submits that the cement has been used for fabrication so it is neither input nor capital goods, hence, the cenvat credit is not available to the appellant. 8.2 After hearing rival submissions of both sides, it appears that the utilisation of subject goods is not clear, when it is so then we set-aside the impugned order and remand the matter on this issue also to the adjudicating authority. The adjudicating authority shall provide an opportunity of hearing to the appellant as per law. 9. Lastly, after hearing both the sides, we are of the view that the demand is not time barr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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