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TMI Blog2023 (7) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11th April 2007 which was certainly before closure of the objection, which was the first time recorded by the revenue by a communication dated 26th May 2008 addressed by the office of Commissioner, Central Excise, Raigad to the Assistant Registrar, Central Excise Service Tax Appellate Tribunal - However, it is quite surprising that neither the appellant revenue nor the respondent had brought to the notice of the Tribunal such communication and as to what would be the effect and consequences thereof, more particularly in relation to the adjudication of the show cause notice dated 11th April 2007 and the reason for the appellant/Revenue to take recourse of the provisions of Section 11A read with Sections 11AC and 11B of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 20th December 2018 which reads thus : - 4. The primary ground of Revenue is that the matter should have been kept pending by the adjudicating authority in call book in view of the pendency of the audit objection. 5. We find that the issue can be decided on the basis of this ground alone without going into the merits of the issue which, having been considered at length by the first appellate authority, was adopted by the adjudicating authority in the impugned order. It would appear that the plea of Revenue before us is to reverse the decision on the show cause notice till the final settlement of audit objection between the Department of Revenue and the Comptroller Auditor General of India. We must take note here that these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Service Tax, Khandeshwar directed the Assistant Commissioner to file an appeal before the Commissioner (Appeals) against the order dated 10th January 2007, by which refund was granted to the respondent. Such appeal came to be filed by the revenue on 4th May 2007. Admittedly prior to the filing of such appeal, a show cause notice in question dated 11 th April 2007 was issued. 3. It appears that on 22nd November 2007, the Commissioner (Appeals) passed an order rejecting the revenue s appeal thereby confirming the order dated 10th January 2007, by which refund was sanctioned in favour of the respondent. It further appears that such Order-in- Appeal was accepted by the revenue and no further appeal was filed against the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 by the Commissioner. It is contended that the show cause notice was infact issued prior to the decision taken by the CERA and hence all the issues have been adjudicated. It is contended that the revenue had given up their claim as the Tribunal has confined the adjudication to a limited issue as observed in paragraphs 4 to 6 of the impugned order dated 20th December 2018. 6. On the other hand, learned counsel for the respondent assessee submits that the adjudication of the appeal itself was rendered academic inasmuch as the revenue had accepted the Order-in-Appeal dated 22nd November 2007 passed by the Commissioner of Central Excise (Appeals) dismissing the revenue s appeal against the order granting refund to the respondent dated 10t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order on 06.03.2020 after 14 months of hearing the matter finally on 20.12.2018, which is in violation of CESTAT (Procedure) Rules read with CESTAT circular dated 23.07.2005-20099236) ELT T15.F.(D.R.) and Advisory No. F.26-2/2009-A.D.1C dated 31.01.2012(276) ELT (T8) ? (c) Whether the CESTAT, being last fact finding authority, erred in dismissing the appeal without discussing merit of the appeal ? 9. Having heard the learned counsel for the parties and having perused the record, we are of the opinion that in the facts and circumstances of the case, the Tribunal ought to have considered the contentions as urged on behalf of the revenue on all the issues instead of confining the scope of the appeal merely on the ground of CERA obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . All these issues ought to have been raised and fell for consideration on rival contentions raised before us. 10. In the aforesaid circumstances, we would not be inclined to deal with the contention of the respondent relying on the decision of the Supreme Court in case of Commissioner of Central Excise, Mumbai-I Vs. M/s.Morarjee Gokuldas SPG. WVG. Co. Ltd. (supra) which can be examined by the Tribunal. 11. We accordingly allow the appeal by setting aside the impugned order dated 20th December 2018 passed by the Tribunal. We restore the Excise Appeal No. 504 of 2008 filed by the revenue. All the issues be decided by the Tribunal afresh and an appropriate order be passed by the Tribunal. Appeal be decided by the Tribunal on its o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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