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2009 (10) TMI 629 - HC - Central ExciseWhether respondent is entitled to abatement in terms of Section 4(4)(d)(ii) of Central Excise Act, 1944 when the Hon’ble Apex Court has held that one cannot go by general implication that wholesale price would always mean cum duty price particularly when the assessee had cleared the goods on the basis of exemption notification – Held that:- Tribunal has held that the assessee is entitled to the benefit of Section 4(4)(d)(ii) of the Act which was obtained during the relevant period Whether remanding of the case by the CESTAT to the adjudicating authority for the consideration of modvat benefit is correct when Modvat credit has already been allowed in Order-in-Original by the adjudicating authority on the basis of available records, after verification – Held that:- remittal order is put in issue on the ground that it has been already considered and denied when the entire entitlement of the modvat benefit was originally considered. The only issue for which the matter had been remitted back to the original authority is whether the assessee is entitled to modvat credit, even that order of remittal has been granted by imposing a condition that the assessee should establish the claim by producing the documents showing payment of duty on the related inputs, remittal order is not in any way prejudicial to the interest or the Revenue to adjudicate the matter on appeal under Section 35(q) of Central Excise Act which requires question of law much less substantial question of law for entertaining the appeal, Appeal is dismissed
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