👍In limitation issue Appellate authority should decide the matter instead of remanding back  

Clipped from: https://taxguru.in/excise-duty/case-limitation-issue-appellate-authority-decide-matter-instead-remanding-back.html

Rudraksh Detergent And Chemicals Pvt Ltd Vs C.C.E.-Kutch (CESTAT  Ahmedabad)

The issue involved in the present case is that whether the re-credit claimed by the appellant is correct or not in terms of para 2C of area based exemption Notification No. 39/2001- CE dated 31.07.2001. This appeal was filed against the Commissioner (Appeals) order whereby the Learned Commissioner (Appeals) has remanded the matter to the Adjudicating Authority to keep the matter in abeyance till recredit orders are issued by the Jurisdictional Assistant Commissioner and then to adjudicate the show cause notice.

CESTAT find force in the argument of learned counsel that the Learned Commissioner (Appeals) instead of remanding the matter to the Jurisdictional Assistant Commissioner he could have decided the matter finally at his end. The appellant emphatically argued on the issue of limitation. The learned Commissioner (Appeals) instead of deciding the limitation remanded the matter which in our view is prima facie incorrect. It is the submission of the learned counsel that after holding the entire proceeding pre-mature the learned commissioner remanded the matter instead of deciding finally on this observation itself. We find that considering the facts and circumstance of the present case the learned Commissioner (Appeals) ought not to have remanded the matter to the Adjudicating Authority particularly when the appellant have raised the ground on limitation. Therefore, we are of the view that the matter should go back to the Commissioner (Appeals) for deciding the appeal before him finally without remanding the matter to the Adjudicating Authority.

FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT

The issue involved in the present case is that whether the re-credit claimed by the appellant is correct or not in terms of para 2C of area based exemption Notification No. 39/2001- CE dated 31.07.2001. This appeal was filed against the Commissioner (Appeals) order whereby the Learned Commissioner (Appeals) has remanded the matter to the Adjudicating Authority to keep the matter in abeyance till recredit orders are issued by the Jurisdictional Assistant Commissioner and then to adjudicate the show cause notice.

2. Shri Vinay Kansara, Learned Counsel appearing on behalf of the appellant submits that the order of the Learned Commissioner (Appeals) travels beyond the scope of show cause notice in as much as the Learned Commissioner has given the directives/order to carry out reassessment after 12 years and direction to keep show cause notice in abeyance. The Learned Commissioner himself could have finally decided instead of remanding it and giving direction for keeping the show cause notice in abeyance. He submits that the appellant have complied with the provision of Para 2C of Notification No. 39/2001- CE dated 31.07.2001 therefore, there is no reason to object the re-credit. He submits that there is no challenge to re-credit availed for 5 years and the show cause notice was issued after 5 years invoking larger period under Section 11 A for recovery of duties on the ground that they are not covered under the Notification.

2. He submits that while taking the re-credit as per para 2-C the same has not been disputed and proceedings after 5 years would be barred by the Limitation. The Order-In-Appeal accepts the above facts and set aside the order in original on the ground that it is pre mature. He submits that once the proceedings and the issue of SCN was held as pre mature than it ought to be set aside and the OIA cannot travel beyond the scope of show cause notice and beyond the ground of appeals before him. He submits that the ground before the Commissioner (Appeal) taken by the appellant was of time bar therefore, the Learned Commissioner instead of deciding the case on time bar remanded the matter to the Adjudicating Authority which is incorrect and illegal. As regard refund/ recredit of education cess and SHE cess was not admissible at relevant time hence Section 11 A with larger period not invokable. He submits that as per the Hon’ble Supreme Court judgment in the case of SRD Nutrients Pvt Ltd – 2017 355 ELT 481 (SC) the credit on education cess and SHE cess was allowed. Even though subsequently the Hon’ble Supreme Court has passed the contrary judgment in the case of Unicorn Industries – 2019 (370) E.L.T. 3 (S.C.) but it will not affect the demand in this case being time barred. He placed reliance on the following decision including their own case.

• Commissioner vs. Rudraksh Detergent & Chemicals Pvt Ltd – 2019 (368) ELT (A.341) (SC)
• C & CE, Rajkot vs. Rudraksh Detergent & Chemicals Pvt Ltd – 2010 (260) ELT 69 (Tri.Ahmd)
• Kunhayammed vs. State of Kerala – 2001 (129) ELT 11 (SC)
• Pernod Ricard India (P) Ltd vs. Commissioner of Customs -2010 (256) ELT 161 (SC)
• Medley Pharmaceuticals Ltd Vs. CCE ,Daman- 2011 (263) ELT 641 (SC)]
• RNB Carbides & Ferro Allpys Pvt Ltd Vs. UOI – 2021 –TIOL- 2233-HC-AHM-CX

3. Shri Kalpesh P Shah, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.

4. We have carefully considered the submission made by both sides and perused the records. We find force in the argument of learned counsel that the Learned Commissioner (Appeals) instead of remanding the matter to the Jurisdictional Assistant Commissioner he could have decided the matter finally at his end. The appellant emphatically argued on the issue of limitation. The learned Commissioner (Appeals) instead of deciding the limitation remanded the matter which in our view is prima facie incorrect. It is the submission of the learned counsel that after holding the entire proceeding pre-mature the learned commissioner remanded the matter instead of deciding finally on this observation itself. We find that considering the facts and circumstance of the present case the learned Commissioner (Appeals) ought not to have remanded the matter to the Adjudicating Authority particularly when the appellant have raised the ground on limitation. Therefore, we are of the view that the matter should go back to the Commissioner (Appeals) for deciding the appeal before him finally without remanding the matter to the Adjudicating Authority.

4.1 Accordingly, we set aside the impugned order and remand the matter to the Commissioner (Appeals) for passing fresh order on all the grounds made before him by the appellant.

5. Appeal is allowed by way of remand to the Commissioner (Appeals).