CESTAT & HC Advocates & ConsultantsAn Order with clear finding but followed by remand is not proper in law

March 27, 20150

The matter was argued by Shri Anand Mishra, Advocate In CESTAT, Ahmedabad on 23.02.2015 . The Honourable CESTAT   laid down the following  ratios :

 despite such a clear cut findings, the impugned order remanding the issue back to the adjudicating authority is incorrect. In my view the first appellate authority should have disposed of the appeal on merits by directing the appellant to produce any additional evidence, if required.


Appeal No. : E/13454-13456,13458-13464/2013
(Arising out of OIA-141/2013-AHD-II-/CE/AK/COMMR-A-/AHD dated 15.7.2013, OIA-142/2013-AHD-II-/CE/AK/COMMR-A-/AHD AHD dated 16.7.2013, OIA-145/2013-AHD-II-/CE/AK/COMMR-A-/AHD dated 23.7.2013, OIA-147/2013-AHD-II-/CE/AK/COMMR-A-/AHD dated 26.7.2013, OIA-150/2013-AHD-II-/CE/AK/COMMR-A-/AHD dated 30.7.2013, OIA-152-2013-AHD-II–CE-AK-COMMR-AAHD dated 31.7.2013 Passed by Commissioner (Appeals) Central Excise, & S.T., Ahmedabad)
M/s. Astra Lifecare India Pvt. Limited : Appellant (s)


Commissioner of Central Excise & S.T., Ahmedabad : Respondent (s)

Represented by :

For Appellant (s) : Shri Anand Mishra, Advocate
For Respondent (s) : Shri J. Nair, A.R.
For approval and signature :
Mr. P.K. Das, Hon’ble Member (Judicial)

Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Whether their Lordships wish to see the fair copy of the Order?

Whether Order is to be circulated to the Departmental authorities?





Mr P.K. Das, Hon’ble Member (Judicial)

Date of Hearing / Decision : 23.02.2015

ORDER No. A/10157-10166/2015 Dated 23.02.2015

Per : Mr. P.K. Das;

Common issue is involved in these appeal and therefore, all are taken up together for disposal.

2. After hearing both the sides and on perusal of the records, I find that the appellants were engaged in the manufacture of Pharmaceutical products classifiable under Chapter 30 of the Schedule to the Central Excise Tariff Act, 1985. The appellants are 100% EOU and availing the facility of CENVAT credit under the Cenvat Credit Rules,, 2004. Appellants filed refund claims under Rule 5 of the Cenvat Credit Rules,, 2004 read with Notification No. 5/2006-CE (NT) dated 14.3.2006 for refund of unutilised balance of CENVAT Account. The adjudicating authority partly allowed the refund claims. The appellants filed appeals before the Commissioner (Appeals). By the impugned orders, Commissioner (Appeals) partly remanded the matters to the adjudicating authority and rejected the appeals in respect of the other issues.

3. Both sides submitted that on the identical issue, in the appellants own case, the Tribunal vide final order No. A/11356/2014 dated 27.6.2014 remanded the matter to the Commissioner (Appeals) to decide the issues on merits. Relevant portion of the said decision is reproduced below:-
3. The issue arises in this appeal is regarding the refund claim of the Cenvat Credit availed of service tax paid on various services :

01. Banking and other Financial Services
02. Banking Auxiliary Services
03. Clearing an Forwarding Agent
04. Construction in Commercial/Industrial/Civil
05. Consulting Engineering Services
06. Courier Services
07. Erection, Commissioning ands Installation Services.
08. Information Technology Software Services
09. Maintenance or Repair Services.
10. Practicing Chartered Accountant
11. Manpower Recruitment/Supply
12. Public Relation Services.
13. Security Agency
14. Support Service of Business or Commerce
15. Technical Testing & Analysis.
16. Telephone service
17. Test, Inspection, Certification

4. The main grievance of the appellant against the impugned order is that the first appellate authority has remanded the case back to adjudicating authority with a direction to scrutinise the refund of service tax paid towards Clearing and Forwarding Agents, Transportation of Goods by Roads, Courier Services, Test and Inspection and Certification Services Banking and Financial Services, Business Auxiliary Services, Business Support Services afresh.

5. On perusal of the impugned order, I find that the first appellate authority has in Para 7.1 to 7.4 has held that all most of the services are eligible for the benefit of cenvat credit and refund can be granted to the appellant. In my considered view, despite such a clear cut findings, the impugned order remanding the issue back to the adjudicating authority is incorrect. In my view the first appellate authority should have disposed of the appeal on merits by directing the appellant to produce any additional evidence, if required.

6. As regards the rejection of the refund claim in respect of Public Relation Services, consulting services, I find that the first appellate authority has not considered this claim in its correct perspective in as much as it is the claim of the appellant that these service are utilised in the manufacturing facility created by them. In my view, the entire issue needs re consideration by the first appellate authority.

7. Accordingly, I set aside the impugned order and remand the matter back to the first appellate authority to decide the issue on merits after following principles of natural justice.

4. After considering the submissions of both the sides and following the Tribunals decision in the appellants own case, the impugned orders are set-aside and remand the matters to the Commissioner (Appeals) to decide the issue afresh, after considering the submissions of the appellants. Needless to say that the Commissioner (Appeals) shall give proper opportunity of hearing before the decision.

5. At this stage, learned Advocate submits that the Commissioner (Appeals) may be directed to decide the matters at the earliest. On a query from the bench, the learned advocate submits that the Commissioner (Appeals), as per the earlier remand order, has already decided the appeals. In view that, the Commissioner (Appeals) is directed to decide the matters as expeditiously as possible.

6. All the appeals are allowed by way of remand.
(Dictated and pronounced in the Court)

(P.K. Das)
Member (Judicial)

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