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2022 (3) TMI 104 - HC - Central ExciseCENVAT Credit - issue of only invoices without supply of any excisable goods - manufacturing capacity in place or not - Rule 4(2)(a) of the Cenvat Credit Rules, 2004 - non-consideration of report of the Registered Chartered Engineer - to provide proper reasoning and/or independent findings while disagreeing with the findings of the adjudicating authority - violation of principles of natural justice or not - availment of credit on the invoices issued by M/s. AESPL, when M/s. AESPL is not authorised to issue Central Excise Invoices under Rule 11 of the Central Excise Rules, 2002 - non-consideration of provisions of Rule 3, 4 and 7 of the Cenvat Credit Rules, 2002/Rules 3, 4 and 9 of the Cenvat Credit Rules, 2004? HELD THAT:- The tribunal has not specifically recorded as to how and in what circumstances the decision of the tribunal in M/S JAI BALAJI INDUSTRIES LTD. VERSUS CCEX., BOLPUR [2019 (10) TMI 1353 - CESTAT KOLKATA] in respect of another unit of the assessee covers the issue on hand. To be noted that the appeal was filed by the respondent/assessee on 6th April, 2010 and, obviously, on the said date the assessee could not have referred to the decision of the tribunal in respect of the assessee’s another unit because the said decision was rendered by the tribunal almost nine years after the appeal was presented i.e., on 25th October, 2019. Thus, it is evidently clear that for the first time when the matter was heard before the tribunal, submission of the assessee was that the issue is covered by the order of the tribunal in Jai Balaji case. The duty cast upon the Court is to examine as to in what manner the decision covers the case before the concerned Court. The Court will be justified in following the earlier decision if the contesting respondent agrees to the same. However, in the impugned order we find that the revenue has not acceded or accepted that the decision dated 25th October, 2019 of the tribunal covers the present case. In such circumstances, it goes without saying that the tribunal has to record reasons as to how the decision would cover the case before it - the assessee prima facie focussed on factual issues as to how they have bona fide effected the purchase and utilised those products for manufacture of finished goods. Whether any substantial question of law arises for consideration? - HELD THAT:- The tribunal has not given any reasons as to why the decision dated 25th October, 2019 would apply to the case on hand. Therefore, if we are called upon the adjudicate the correctness of the order, we would have to examine as to whether the Commissioner of Central Excise has rendered a proper finding in the order in original. This is not the scope of the appeal under Section 35G of the Act. This is one more reason as to why the order impugned has to be set aside and the matter to be remanded for fresh consideration. The matter is remanded to the tribunal for fresh consideration on merits and in accordance with law - Appeal allowed by way of remand.
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