TMI Blog2011 (6) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... remanded to Commissioner (Appeals. Appeal is allowed by way of remand - E/915/09 - - - Dated:- 29-6-2011 - SHRI S.K. GAULE, J Appearance: Ms. Anjali Hirawat Advocate for Appellant Shri A.K. Prabhakar JDR for Respondent Per: S.K. Gaule The appellant filed this appeal against the Order-in-Appeal No. P-I/VSK/113/2009 dated 30.4.2009 whereby the Commissioner (Appeals) has set aside the lower adjudicating authority's order and remanded the case back to the lower adjudicating authority for re-examining the whole issue. 2. Briefly stated facts of the case are that the appellants are engaged in the manufacture of excisable goods namely Autorims falling under Chapter 87 of the Central Excise Tariff Act, 1985. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was claimed by the appellants. The department was of the view that in view of the fact that transit insurance was claimed for damage, the defective capital goods could not have been used in the factory of production. This is in turn made the appellants ineligible to avail CENVAT credit in terms of the eligibility criteria laid down in CENVAT Credit Rules. The original adjudicating authority allowed the refund but by way of credit in the CENVAT account in terms of the Tribunal order. From perusal of the Tribunal Order, I find that the Hon'ble Single Member Bench had allowed the availment of CENVAT credit without going into the eligibility criteria on the grounds that there was no legal provision at the time of the issue of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeal, supercession, and substitution of Rules. Therefore, assessee's contention that the substitution of Rules was not saved by Section 38A is incorrect because this substitution was effected by way of amendment which is duly saved by Section 38A of the Central Excise Act, 1944. Therefore, I find that in this case the Hon'ble Member of the Tribunal (Single Bench) while recording his finding has not considered the relevant provisions of law which was submitted before him and appears not to have taken cognizance of the same. The conclusion of the single Member that the recovery provisions under erstwhile Rules 57I and 57U were not saved under the new MODVAT Rules is contrary to the provisions of law. I, therefore find that this is a fit cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) remanded the case to the lower adjudicating authority unmindful to the fact that the power of remand of Commissioner (Appeals) has been taken away by the amendment of Section 35A of Central Excise Act, 1944 and Hon'ble Supreme Court's decision in the case of MIL India Ltd. (supra). 6. In view of the above, the order of the Commissioner (Appeals) is not sustainable as he has not appreciated the issue involved. Therefore, the issue requires reconsideration. Accordingly, I remand the case to the learned Commissioner (Appeals) to decide the case as per the show-cause notice issued in the case. Needless to say, that a reasonable opportunity of hearing should be given to both sides for presenting their case. Appeal is allowed by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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