Lack of Exercise of Jurisdiction: CESTAT remands abeyance order of Excise Commissioner [Read Order]

In a recent judgement, the Ahmedabad bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that CESTAT remanded issue arose out of limitation to Commissioner (A).

Shri Vinay Kansara, Advocateappeared for the Applicant and Shri Kalpesh P Shah appeared for the Respondent.

Rudraksh Detergent and Chemicals Pvt ltd, the assesseechallenged the order whereby the 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.

It was submitted that the order of the Learned Commissioner (Appeals) travels beyond the scope of show cause notice in as much as the Commissioner has given the directives/order to carry out reassessment after 12 years and direction to keep show cause notice in abeyance.  The 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 has 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 thatthere is no challenge to re-credit availed for 5 years and the show cause notice was issued after 5 years invoking a larger period under Section 11 A for recovery of duties on the ground that they are not covered under the Notification. 

A Coram comprising of Mr Ramesh Nair, Member (Judicial) and Mr Raju, Member (Technical) observed that the Commissioner (Appeals) instead of remanding the matter to the Jurisdictional Assistant Commissioner could have decided the matter finally at his end. The appellant emphatically argued on the issue of limitation. The Commissioner (Appeals) instead of deciding the limitation remanded the matter which in our view is prima facie incorrect.

Further held that Commissioner (Appeals) ought not to have remanded the matter to the Adjudicating Authority, particularly when the appellant has raised the ground on limitation and the matter should go back to the Commissioner (Appeals) for deciding the appeal before him finally without remanding the matter to the Adjudicating Authority. 

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