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TMI Blog2008 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... rs which were not alleged in the show cause notice. That is a factual position emerging from the record. That factual position having been noticed, the Tribunal has rightly quashed and set aside the Order of the Commissioner (Appeals) and allowed the assessee's appeal in toto. We are in agreement with the factual findings recorded in Para 4 and 5 of the Tribunal's Order based as they are on the materials on record. There is no substantial question of law in the peculiar facts of this case which requires any answer. The matter turns on its own facts and, therefore, we need not answer the questions of law referred to above. - 549 of 2000 - - - Dated:- 2-9-2008 - S.C. Dharmadhikari and N.A. Britto, JJ. [Judgment per : S.C. Dharmadhik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of not mentioning in the Show Cause Notice that the goods were not covered under 57Q and whether the CEGAT had jurisdiction to override the express provisions of Rule 57U ? 3. The assessee is M/s. Nestle India Ltd. It is duly served but none has appeared on its behalf. Office report shows that service is complete and, thereafter, this application is placed before us for hearing and final disposal. 4. We have heard Shri C.A. Ferreira, learned Assistant Solicitor General, appearing for the applicant/revenue. With his able assistance, we have perused the application and the annexures thereto including the Order of the Customs, Excise Gold (Control) Appellate Tribunal, West Regional Bench, Mumbai. 5. The appeal together with stay ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Modvat credit should not be denied and recovered from them under Rule 57U of the Rules read with Section 11A of the Central Excise Act. 11. The assessee replied to the show cause notice and the Asst. Commissioner by his Order dated 27-1-1999 held that the Modvat credit amounting to Rs. 15,15,352.77 is inadmissible under Rule 57Q of the Rules and confirmed the demand accordingly. He directed the assessee to pay the amount confirmed by him forthwith. 12. Aggrieved by this Order, the assessee approached the Commissioner of Central Excise (Appeals), Mumbai and after hearing both sides, the Commissioner (Appeals) set aside the above Order and remanded the matter for de novo consideration as per directions contained in his Order. The Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That was plainly impermissible inasmuch as the Department invoked Section 11A read with relevant Rules on the basis that there is no declaration. Once there was a declaration on record, then, in the absence of clear allegations in the show cause notice, it was not open for the Asst. Commissioner to have considered the issue of eligibility of Modvat credit. That being admittedly done by him in so far as goods covered by Annexure B, his Order was unsustainable. The Order being patently unsustainable should have been quashed and set aside by the Appellate Authority namely the Commissioner (Appeals), instead, he erred in remanding the matter for de novo consideration. 16. What we find from the Order of the Tribunal is that its ultimate concl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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