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TMI Blog2010 (6) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... . The backdrop of facts in brief needs to be outlined to better comprehend the rival arguments. Three units of the respondent Company which is an assessee under the Central Excise Act, 1944, (for short hereafter referred to as the Act) are involved in the present proceeding, one whereof is located at Guwahati in the State of Assam and two others at Agartala in the State of Tripura. The one located at Guwahati is owned by the respondent No. 1 and the two at Agartala by the Respondent No. 2. The respondent companies are engaged in the manufacture of Pan Masala including tobacco categorised under Tariff 2404.49 contemplated within the purview of the Notification No. 69/2003-C.E., dated 25-8-2003 (Annexure B to the memo of appeal) and entitled to the exemption as referred to therein subject to the terms and conditions prescribed thereby. In terms thereof, to avail the exemption, the sum of basic excise duty, special excise duty and additional excise duty to be paid is required to be utilised by the manufacturer only for the investment in plant and machinery in their said manufacturing units. For the relevant periods as would be detailed hereinbelow the respondent units had been cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue was dismissed. Being aggrieved, the Commissioner of Central Excise, Shillong, is in appeal before us. This Court while admitting the appeal framed the following substantial questions of law : - 1. Whether the Appellate Tribunal committed error in remanding the matter to the Chief Commissioner instead of the Commissioner of Central Excise for adjudication because under the statute the Chief Commissioner has no adjudication power? 2. Whether the Appellate Tribunal committed error in dismissing the appeal filed by the department because in terms of the Circular No. 825/2/2006-CX, dated 6-2-2006 an appeal is maintainable before the Appellate Tribunal at the instance of the Commissioner of Central Excise on the basis of the direction given by anyone of the Chief Commissioners of Central Excise? 6. Before we advert to the arguments advanced, it would be expedient to cull out the grounds on which the learned Tribunal had made its determinations in the four appeals. According to it, the authorisation made by one Chief Commissioner of the Committee for preferring the appeal in the event of a difference of opinion between the two members thereof had no sanction of law and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the decision of the Tribunal dismissing the same as not maintainable is obviously illegal. With reference to the pleadings of the appellant as well as the official records, Mr. Paul has further argued that as the meetings of the Committee belatedly though had been held inter alia scrutinising the assessees' claim for exemption under the aforementioned notification, the premise on which their appeals were allowed is also non est and on that count as well the impugned decision ought to be interfered with Mr. Paul has amongst others produced the final certificates issued by the Committee on a verification of the assessee's claim for exemption under the above notification. 9. Mr. Bhattacharyya while endorsing the view taken by the learned Tribunal vis-à-vis the appeal of the Revenue has drawn the attention of this Court to the provision to Section 35E of the Act and has contended that having regard to the state of law on the day on which the present appeal is being disposed of no fault therewith can be attached. Referring to the pleadings of the assessees in the appeal in details as well as the documents produced before this Court for its perusal, the learned Sr. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Final Certificate dated 6-2-2005 Dharampal Satyapal Ltd. Guwahati 1-10-2003-31-12-2003 ₹ 8,59,52,673/- ₹ 60,55,390/- accepted as final investment. ₹ 7,98,97,283/- accepted provincially on the basis of secured payments made. ₹ 28,28,000/- accepted as final investment. Investment of remaining amount of ₹ 7,70,79,283/-denied for non-installation of plant and Machineries. Dharampal Satyapal Ltd. Guwahati 25-8-2003-30-9-2003 ₹ 2,13,70,927/- ₹ 3,76,818/- accepted as final investment. ₹ 2,09,94,154/- accepted provincially on the basis of secured payments made. Investment of ₹ 2,09,94,154/- denied for non-installation of plant and machineries. (Interim certificate not on record) 1-10-2003-31-12-2003 ₹ 4,34,15,463/- ₹ 5,41,776/- accepted as final investment. ₹ 4,28,73,687/- accepted provincially on the basis of secured payments made. ₹ 28,496/- accepted as final investment. Investment remaining amount of ₹ 4,28,45,191/- denied for noninstallation of plant and machineries. Dharampal Satyapal Ltd. Guwahati 25-8-2003-30-9-2003 ₹ 10,23,414/- ₹ 10,23,414/- accepted as final invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be adjudged untenable. 13. In view of the conclusions recited hereinabove, we sustain the decision of the learned Tribunal vis-a-vis the appeal of the revenue. However, the determination made by the Tribunal qua the appeals filed by the assessee is interfered with. Significantly the learned Tribunal in allowing the appeals of the assessees by the judgment and order impugned herein had not examined their contentions on merit pertaining to their claim for exemption from excise duty to which they asserted were entitled under the notification dated 25-8-2003. The annulment of the judgment and order of the learned Tribunal to this extent therefore would have no bearing whatsoever on the merit of the rival assertions of the parties on the issue of exemption. The learned Tribunal following such remand would scrutinise the claim of the assessees on all relevant aspects in the background of the provisions of the Act and the notification dated 25-8-2003 in particular as well as all contemporaneous records bearing thereon and record its decision after according all reasonable opportunity of hearing to the parties. The parties, if pray, be allowed to file additional pleadings and record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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