2018 (10) TMI 1416 – BOMBAY HIGH COURT – TMI – Demand barred by limitation – remand of the matter – Section 35G of the Central Excise Act, 1944 – Whether in the facts and circumstances of the case and in law, the Tribunal was correct in remanding the matter to the adjudicating authority?
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Held that:- The impugned order even does not record whether any of the parties at the hearing urged that the order dated 7th June, 2013 of the Commissioner was impossible to understand, therefore, making it difficult to challenge. It cannot be disputed that in the facts of a particular case, the Tribunal may refer/ restore the case to the adjudicating authority for fresh consideration.
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In fact, Section 35C of the Act, while dealing with the orders of the Tribunal does provide that it may if it thinks fit, refer the case back to the authority which passed the order in appeal. However, the word “may if it thinks fit”, is not an arbitrary or subjective satisfaction of the Tribunal but a satis
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l under Section 35G of the Central Excise Act, 1944 (the Act), challenges the order dated 2nd November, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal). 2 The Appellant urges the following question of law for our consideration: Whether in the facts and circumstances of the case and in law, the Tribunal was correct in remanding the matter to the adjudicating authority? 3 At the request of the parties, the Appeal itself is being disposed of finally at this stage, as the controversy is within a narrow compass. 4 A show cause notice dated 1st April, 2010, was issued to the Appellant by the Respondent Revenue, seeking to recover excess Cenvat Credit, aggregating to ₹ 46.15 Crores, for the period November, 2004 to March, 2008. 5 Appellant filed its reply to the Commissioner, contesting the notice both on merits and limitation. By an order dated 7th June, 2013, the Commissioner held that show cause noticecumdemand, is barred by limitation. Thus, he h
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llenged the conclusion of the Commissioner that the demand is barred by limitation. It is pointed out that the impugned order does not record the dispute which requires adjudication nor does it record the grievance of the parties. It merely proceeds on its perusal of the order of the Commissioner and comes to the conclusion that the order has been passed without any reasons inasmuch as same does not exhibit the mind of the author. 8 On the other hand, Mr. Jetly, learned Counsel for the Revenue, submits that no interference is warranted. This on the ground that no prejudice would be caused as the impugned order has merely restored/ remanded the show cause notice to the Commissioner for fresh adjudication. 9 We have been taken by the parties through the impugned order of the Tribunal. We do not find any recording of the controversy in dispute and the grievance of the parties to it. The impugned order even does not record whether any of the parties at the hearing urged that the order date
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mand a matter for fresh consideration, the same cannot be at its whim and fancy or mere ispi dixit but a conclusion based on reasons. 10 Therefore, the impugned order is not sustainable. Mr. Jetly's submission that no prejudice is caused as the issue has only been remanded, is not correct. The party in whose favour the order is passed is certainly prejudiced if the order in its favour is being set aside without any reasons. Thus, prejudice is caused. Further, there is a manner of passing orders viz: supported by reasons. This giving of reasons by authority is now an undisputed part of Rule of law as held by the Apex Court in CIT v/s. Shukla & Bros. 2010 (4) SCC 785. 11 The substantial questions of law is answered in negative i.e. in favour of the Appellant and against the Respondent Revenue. In these circumstances, the impugned order is quashed and set aside and restored to the Tribunal for fresh consideration. 12 Needless to state the Tribunal would pass an order afresh, in ac
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