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TMI Blog2022 (3) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 3, 4 and 7 of the Cenvat Credit Rules, 2002/Rules 3, 4 and 9 of the Cenvat Credit Rules, 2004? HELD THAT:- The tribunal has not specifically recorded as to how and in what circumstances the decision of the tribunal in M/S JAI BALAJI INDUSTRIES LTD. VERSUS CCEX., BOLPUR [ 2019 (10) TMI 1353 - CESTAT KOLKATA] in respect of another unit of the assessee covers the issue on hand. To be noted that the appeal was filed by the respondent/assessee on 6th April, 2010 and, obviously, on the said date the assessee could not have referred to the decision of the tribunal in respect of the assessee s another unit because the said decision was rendered by the tribunal almost nine years after the appeal was presented i.e., on 25th October, 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for fresh consideration. The matter is remanded to the tribunal for fresh consideration on merits and in accordance with law - Appeal allowed by way of remand. - CEXA/13/2021 IA No.GA/2/2021 - - - Dated:- 23-2-2022 - HON BLE JUSTICE T.S. SIVAGNANAM AND HON BLE JUSTICE HIRANMAY BHATTACHARYYA Appearance: Mr. Somnath Ganguli, Adv. Mr. Tapan Bhanja, Adv. ...for the appellant. Mr. Agnibesh Sengupta, Adv. Ms. Swapna Das, Adv. ...for the respondents. The Court : This appeal filed by the revenue under Section 35G of the Central Excise Act, 1944 (the Act in brevity) is directed against the final order No.75111/2020 dated 15th January, 2020 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (in sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority and a reasonable one? The respondent/assessee was issued a show cause notice dated 4th December, 2008 alleging that the respondents have wilfully and deliberately indulged in suppression of material facts from the department of non-receipt of capital goods namely, machine mechanical appliances from the so called manufacturer-supplier, M/s. Ashok Electrical Stampings (P) Ltd. (M/s. AES) who had actually never manufactured or supplied the same which, according to the department, was evident from the investigation carried out by the concerned jurisdictional unit. Further, the show cause referred to a statement given by the Project Manager of the assessee on 28th November, 2008 recorded under Section 14 of the Act with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument and used in the assessee s factor for production and manufacture of final products and collateral evidence including the payment particulars through cheques were reflected in the Party-Ledger have been produced at the time when summons was issued to the assessee. Further, it was stated that before the assessee placed supply of purchase orders with M/s. AES, a thorough due diligence was done and only after verification orders were placed. Further, what is required to be seen is whether the assessee had produced documents as specified in Rule 9 of the Rules irrespective of whether the supplier had committed some error or mistake and for which the assessee should not be penalised. Several other accounts and factual details were placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard before the tribunal, submission of the assessee was that the issue is covered by the order of the tribunal dated 25th October, 2019. If such was the factual position, in our considered view, the duty cast upon the Court is to examine as to in what manner the decision covers the case before the concerned Court. The Court will be justified in following the earlier decision if the contesting respondent agrees to the same. However, in the impugned order we find that the revenue has not acceded or accepted that the decision dated 25th October, 2019 of the tribunal covers the present case. In such circumstances, it goes without saying that the tribunal has to record reasons as to how the decision would cover the case before it. Having fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low tax effect. If such is the situation, the duty of the Court, while examining the appeal under Section 35G has to be looked into. We are required to examine as to whether any substantial question of law arises for consideration. The tribunal has not given any reasons as to why the decision dated 25th October, 2019 would apply to the case on hand. Therefore, if we are called upon the adjudicate the correctness of the order, we would have to examine as to whether the Commissioner of Central Excise has rendered a proper finding in the order in original. This is not the scope of the appeal under Section 35G of the Act. This is one more reason as to why the order impugned has to be set aside and the matter to be remanded for fresh conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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