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2016 (5) TMI 563 - BOMBAY HIGH COURT

2016 (5) TMI 563 - BOMBAY HIGH COURT - TMI - Validity of Tribunal's order remanding the matter back for re-adjudication - CENVAT credit on common inputs and input services - Appellant contended that the Tribunal was in complete error in remanding the matter and the submission that the Commissioner has become functus officio is based on a communication, copy of which has been placed on file. Held that:- We do not think that the Tribunal has concluded the arguments raised before us of the Commissi .....

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e department to examine the contentions on the same. - Decided against the appellant - CENTRAL EXCISE APPEAL NO. 25 OF 2016 - Dated:- 7-3-2016 - S.C. DHARMADHIKARI AND A.A. SAYED, JJ. For The Appellant : Mr. Makarand Joshi i/b M/s. Max Legal For The Respondent : Mr. Pradeep S. Jetly with Mr. Jitendra B. Mishra P.C. : 1. This appeal challenges the order passed by the Tribunal which is of remand. By the impugned order dated 19th March, 2015, the Tribunal set aside both the orders-in-original dated .....

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was engaged in the manufacture of industrial boilers. Amongst other type of boilers, they are also manufacturing Agro waste fired boilers. These Agro waste fired boilers are exempt from payment of central excise duty under Notification No.6 of 2002 of the Central Excise dated 1st March, 2006 in terms of Sr. No. 237 of the table to the Notification read with Item No.16 of List 9. It is the case of the appellants that they are regularly complying with the law. They are registered with the departme .....

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were given and the order-in-original was passed confirming the show cause notices and the demand therein. That order-in-original dated 22nd September, 2006, was challenged before the Tribunal, but the Tribunal and from what appears at page 5 of the paper-book did not assist the assessee in any manner. Thereafter, the personal hearing was held in terms of the show cause notice and the reply and an order was passed on 26th November, 2007, with regard to a show-cause notice dated 5th April, 2007. .....

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before the Tribunal certain amendments were made to section 73 of the Finance Act , 2010 and in pursuance thereof, the proportionate credit was claimed to be reversed as envisaged in the said section. A letter was filed to that effect on 4th November, 2010, with the Commissioner, Pune-I, which was received on 8th November, 2010. However, no communication has been received from the Commissioner and it is, therefore, presumed that the reversal made is as per law and nothing survives thereafter. 6 .....

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is not clear from this material whether the assessee has satisfied the conditions of the provisions or not. It is in order to ascertain this position that the Tribunal allowed the appeal, set aside the orders and remanded the matter back to the Commissioner for a decision on the issue and on taking into consideration the assessee's letter dated 4th November, 2010. 7. After carefully perusing the order of the Tribunal in its entirety, we are unable to agree with the learned counsel that the T .....

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mber, 2010. There is no declaration under section 73 for acceptance / rejection. The letter is only an intimation of the reversal of CENVAT credit in terms of clause / section 73 of the Finance Act of 2010 as it retrospectively amends Rule 6 of the CENVAT Credit Rules, 2003. He has given an explanation why the assessee's letter was not processed by the department. 9. We have seen a copy of that letter which is at page 74 of the paper-book. That letter of 4th November, 2010, to the Commission .....

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eon. 10. This letter also states as under : "We are submitting herewith our application along with the following documents for your kind approval certifying the amount of input credit attributable to the inputs used in or in relation to the manufacture of exempted goods. 1. Copies of Statements showing month-wise clearance of dutiable and exempted goods. 2. Copy of relevant pages of CENVAT Register, TR6 Challans and relevant pages of PLA Register evidencing payment / reversal of CENVAT as a .....

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the paper-book from this letter would indicate that the request of assessee was to consider this letter dated 4th November, 2010, as an application. The further request was to treat the matter as closed as the assessee claimed to have paid an amount equal to the CENVAT credit attributable to input services used in the manufacture of exempted goods after the clearance of the goods along with interest. Surprisingly the bracketed portion of this sentence states "subject to your approval for a .....

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