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TMI Blog2013 (11) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... elay, admitted the SLP filed by Revenue. 3. We have considered the submissions and perused the records. 4. We find that the adjudicating authority has held in favour of the appellant and on an appeal filed by the Department, the first appellate authority has recorded the following:- 5.2 On 20.04.2010, the appellant-department was asked to furnish the requisite evidences in support of grounds of the appeals and reminder letters dated 12.05.2010 and 02.06.2010. Vide letter dated 08.06.2010, the appellant-department, through the Joint Commissioner of Customs (Refund), CH, Kandla, informed that the investigation was taken over by DGCEI, Ahmedabad and all the files of the said' refund were transferred to DGCEI, Ahmedabad and thus it was not possible to provide any concrete evidence at that stage. Vide letter dated 14.09.2012 (after more than 2 years) the appellant-department was again asked to inform the status of the issue and offer comments on same within 15 days. By letter dated 26.09.2010, the appellant, through Additional Commissioner of Customs (Legal), CH., Kandla, informed that in similar matter, they had already fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs (Refund), CH, Kandla, informed that DGCEI has issued many show cause notices on the ground that there is manipulation of invoices in order to fraudulently avail 4% SAD; that they are still in process of issuing show cause notice and as of now show cause notices have been issued in 335 cases; that to defend the department's appeal properly co-relation of their show cause notices with the appeal in case of sanctioned refunds is necessary and requested to extend the time for further one month. Upon a reminder by this office letter dated 07.02.2012, a letter dated 22.02.2013 of the Additional Commissioner was received on 05.03.2013, in which it has been informed that in 89 cases out of total of 198 appeals before me, show cause notices have already been issued by the DGCEI on. The allegation of manipulation of invoices, which is also the ground of CA-2 and therefore, the cases are fit to be remanded. 5.3 In summary, I find that no evidences have been placed before me till date to substantiate the grounds of appeal, despite inordinate time consumed in the correspondence. 6.1 I have carefully gone through the facts of all the cases on records, the grounds of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts before him were purportedly the manipulated or forged documents for the purpose of getting refunds sanctioned, which is another ground of appeal, which I would discuss separately. There is no doubt that the appellant-department has the powers to conduct inquiry and also powers under law to recover a wrongly sanctioned refund, if it is proved with evidences that a claimant of refund defrauded through manipulated documents. 6.4 The next contention of the appellant-department that subsequent refund claims of similar nature were rejected by the Department and the same were upheld by the Commissioner (Appeals) is not a strong ground to seek remand. The cases of refund have to be decided based on facts in each case. No case of manipulation of documents was alleged in those appeals. In any case, as facts reveal, those orders have been set aside by the Hon'ble CESTAT and the orders of CESTAT have been upheld by the Hon'ble High Court of Gujarat, though the appellant-department has preferred appeals before the Hon'ble Supreme Court. 6.5 The appellant-department has further contended in a few cases that it was observed by them that 'the invoices manipulated or appear to be manipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als do not survive for want of evidences, the alternate remedy under section 28 of the Customs Act, 1962) shall remain alive and valid. 7.2 I must also answer the contention of some of the respondents that the Commissioner (Appeals) does not have power to remand. In this regard, I find that the Hon'ble CESTAT, Ahmedabad in its recent judgment and order concerning a Service Tax matter in Bacha Motors (Pvt.) Ltd. vs., Commissioner of Service Tax, Ahmedabad [2010 (255) ELT 530 (Tri. Ahmd)] has gone into the specific question whether, after substitution of the provisions in the procedural part of the appellate power under Section 128A(3) of the Customs Act, 1962 w.e.f. 11.05.2001, the Commissioner (Appeals) has powers to remand the matter back to the original adjudicating authority. In its Final Order No.A1500-501/2010-WZB/AHD, dt.14.05.2010 in Appeal Nos. ST/430-431/2009 rejecting the appeal filed by Bacha Motors (Pvt.) Ltd. challenging the Commissioner (Appeals)'s order remanding the matter to the original authority, Honble Tribunal has held thus: This appeal involves a very short issue as to whether the Commissioner (Appeals) has powers to remand the matter back to the original a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Umesh Dhaimode reported in 1998 (98) E.L.T. 584 (SC). I conclude that the contention of some of the respondents that Commissioner (Appeals) does not have power of remand is not acceptable. This position is, however, not relevant any more as I have already concluded earlier that in the present cases, the appeals of the appellant-department to remand the cases are not found sustainable. I am not delving into other contentions of the respondents raised in their individual cross/counter reply. 5. The ground of appeal of the Department only states that the importers were preparing duplicate set of invoices. It is seen from the records that Revenue has not adduced any evidence to the submissions made by them and is the finding of the first appellate authority. It is authorized representatives assertion that the Department is in possession of clinching evidences, but unfavourably did not produce anything before the Tribunal nor was it produced earlier. Be that as it may, we find that this Bench in Final Order dt.24.09.2010 in an identical set of facts had allowed the appeals filed by the assessees. We find that the order of the first appellate authority is correct, legal and does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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