As jurisdictional Commissioner he reviews order and as Commissioner(A) allows Revenue's appeal - CESTAT orders remand and…
HISTORY repeats itself…well almost!
Seven years ago we reported the case 2006-TIOL-174-CESTAT-MUM wherein the CESTAT, WZB observed –
“…It is strange that this appeal has been filed under authorization by the applicant Commissioner, Central Excise, Belapur, Shri xxx against the impugned order in appeal passed by no other than himself in his earlier capacity as Commissioner of Central Excise(Appeals), Mumbai. It is not as if he has been directed by any superior authority to file this appeal as was confirmed by the learned SDR. Filing of such an appeal as this against his own order clearly indicates that some of the Commissioners in the field are not willing to take responsibility for accepting even their own orders and they perhaps want that every decision to allow relief should be approved at the Tribunal level. Such tendency on the part of the departmental authorities is perhaps the cause of numerous avoidable departmental appeals filed in the Tribunal.”
The aforesaid phenomenon was repeated after a couple of months in the case reported by us as with the caption “I pass an order as Commissioner (A) in assessee's favour - Now as jurisdictional Commissioner, I file an appeal praying for setting aside the same.”
A diagonally opposite situation took place some months back. The lower adjudicating authority dropped the proceedings initiated under a SCN and this order was reviewed by the jurisdictional Commissioner necessitating filing of an appeal by the Revenue before the Commissioner(Appeals).
Before the Commissioner(Appeals) could decide the Revenue appeal, he probably got transferred and the Commissioner who had earlier ordered the review above stepped into his shoes.
Needless to mention, the decision was a foregone conclusion - he allowed the appeal of the Revenue.
And the assessee was not ready to take things lying down.
They filed an appeal to the CESTAT and narrated the facts beginning from the very beginning.
The Bench found merit in the contention of the appellant and held that the same authority who reviewed the order cannot decide the appeal.
Holding so, the Bench set aside the order and remanded the matter to the Commissioner(A) to decide afresh.
The matter did not end there because the seat of the Commissioner(A) was still being occupied by the same Commissioner who passed the order in the first place.
So, the Bench has requested the jurisdictional Chief Commissioner of Central Excise to entrust the appeal to the Commissioner(Appeals) other than the lower appellate authority in question.
The appeal was disposed of by way of remand.
But…is wearing two caps illegal? For an answer kindly see 2002-TIOL-397-CESTAT-DEL.
(See )
Capital goods installed in adjacent plot which plot was later merged with the factory – CENVAT credit prima facie admissible
The appellant availed CENVAT credit on capital goods installed at the plot adjacent to their factory and which plot was finally merged with the factory of the applicant.
It is the allegation of the revenue that CENVAT credit is taken prior to intimation to the department and prior to amendment in the Central Excise registration certificate and, therefore, the credit is inadmissible.
The Bench observed –
“4. Considering the fact that the it is not denied that the said capital goods and the storage tank has merged with the factory of the applicant and if the same are merged with the factory of the applicant, prima facie, I am of the view that applicants are entitled for CENVAT credit. Accordingly, applicant has made out a case for 100% waiver of pre-deposit and I do so and I waive the requirement of pre-deposit of entire amount of duty, interest and penalty and stay recovery thereof during the pendency of the appeal.”