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TMI Blog2023 (1) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is in paragraph 13 says The respondent vehemently objected to the remand made by the Ld. Commissioner (Appeals). However, the respondent without challenging the impugned order by filing an appeal or cross objection can not seek the quashing of the direction of the Ld. Commissioner (Appeals) for remand for requantification. Hence the submission of the respondent in this regard is rejected. Further it is found that the Ld. Commissioner (Appeals), decided the subject disputed matter on the basis of judgment of THE PRINCIPAL COMMISSIONER VERSUS M/S ALEMBIC LTD. [ 2019 (7) TMI 908 - GUJARAT HIGH COURT] and grievance of the revenue is that departmental appeal is pending against the decisions of said order. In these circumstances, the matter sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.09.2017 was issued to the respondent demanding Cenvat credit along with interest and proposing imposition of penalty, which was adjudicated vide OIO dated 29.12.2017. Against the said order, the respondent preferred an appeal before the Commissioner (Appeals), who vide OIA dated 26.11.2018, rejected the appeal of respondent. The respondent thereafter filed an appeal before CESTAT and vide final order dated 23.01.2020 CESTAT remanded the matter back to the adjudicating authority for fresh adjudication. In remand proceeding Ld. Joint Commissioner vide OIO dated 30.12.2020 confirmed the Cenvat demand and imposed the penalty. Being aggrieved, respondent filed appeal before the Commissioner (Appeals), Surat, who vide impugned order allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat Credit Rules, 2004, that they would not be allowed to avail credit of service tax paid on input services if the output service are exempted services and that they may have to reverse the cenvat credit taken by them in terms of statutory provisions of Rule 6(3) of Cenvat Credit Rules, 2004. It is settled legal position that, if law prescribed certain thing to be done in certain manners only then it has to be done in such prescribed manner only. He placed reliance on the decision of JK Housing Board and Other Vs. Kunwar Sanjay Kishan Kaul - (2011) 10SCC 714. 3.2 He further submits that the Ld. Commissioner by relying the Judgment of the Hon‟ble High Court in case pf Principal Commissioner Vs. Alembic Ltd. - 2019(29)GSTL 625 (Guj.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat Credit of input services availed during the construction phase on account of unsold units at the time of grant of completion certificate /BUC. The given issue stands settled in respondent‟s favour by the decision of M/s Alembic Ltd. supra. The Hon‟ble Supreme Court has not granted the stay in the matter of department SLP filed against the decisions of Hon‟ble Gujarat High Court. In the absence of any stay granted by the Hon‟ble Supreme Court, the decision of M/s Alembic supra deserve to be followed and accordingly the captioned appeal along with deserves to be dismissed. 4.1 He also submits that the Ld. Commissioner (Appeals), while allowing respondent appeal, has erred on facts and in law in terms of rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Ld. Commissioner (Appeals). However, the respondent without challenging the impugned order by filing an appeal or cross objection can not seek the quashing of the direction of the Ld. Commissioner (Appeals) for remand for requantification. Hence the submission of the respondent in this regard is rejected. 6.1 Further we find that the Ld. Commissioner (Appeals), decided the subject disputed matter on the basis of judgment of M/s Alembic Ltd. supra only and grievance of the revenue is that departmental appeal is pending against the decisions of said order. In these circumstances, we are of the view that the matter should be remanded to the original adjudicating authority to decide the matter afresh on the basis of outcome of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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