TMI Blog2019 (7) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of the learned Tribunal under Section 35C of the Act. So long as the question of entitlement of Assessee to avail such cenvat credit is not validly disputed or questioned by the Revenue, which in the present case has not so been done, the Revenue cannot insist upon a open remand for leaving the question of penalty of imposition also free to be reconsidered by the Adjudicating Authority - there is no illegality committed by the learned Tribunal in this regard and therefore, we find the present appeal by Revenue being without any merit. The questions are answered in favour of the Assessee and against the Revenue - Appeal dismissed. - C.M.A.No.2291 of 2018 - - - Dated:- 20-6-2019 - Dr. Justice Vineet Kothari And Mr. Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise-2015(39) STR 726 (Guj) had analyzed the amendment brought forth in the said definition and also the applicability of the decision laid down in the case of Vandana Global Ltd. Further, in various decision cited by ld. consultant, the jurisdictional High Court and the Tribunal held that credit availed on MS items/iron and steel used for fabrication of capital goods or support structures is eligible for credit. However, the fact requires verification based on the evidence produced by the appellant. For this limited purpose, we remand the matter to the adjudicating authority who shall analyse the issue afresh after considering the decisions on the said issue. We also find that the issue was an interpretational one and the penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order of the learned Tribunal has to be set aside. 5. per contra, learned counsel for the Assessee urged that Section 35C of the Central Excise Act, 1944, empowers the Appellate Tribunal to pass such orders thereon as it thinks fit either confirming or modifying or annulling the decision or order appealed against or the Tribunal may remand the case back to the authority, who passed such decision or order with such directions as it may think fit. He submitted that since the power of the learned Tribunal are wide and the Tribunal, being the highest fact finding Appellate body under the Act, it could definitely not only hold that the assessee was entitled for such cenvat credit as indicated in paragraph 5, relying up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remanding the case only for the purpose of computation of cenvat credit, for which Assessee was found entitled. 8. So long as the question of entitlement of Assessee to avail such cenvat credit is not validly disputed or questioned by the Revenue, which in the present case has not so been done, the Revenue cannot insist upon a open remand for leaving the question of penalty of imposition also free to be reconsidered by the Adjudicating Authority. We do not find any illegality committed by the learned Tribunal in this regard and therefore, we find the present appeal by Revenue being without any merit. 9.The judgment relied upon by the Revenue is in the case of Union of India vs Rajasthan Spinning Weavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding in the order passed under Section 11A(2) there would be no application of the penalty provision in Section 11AC of the Act. On behalf of the assessees it was also submitted that Sections 11A and 11AC not only operate in different fields but the two provisions are also separated by time. The penalty provision of Section 11AC would come into play only after an order is passed under Section 11A(2) with the finding that the escaped duty was the result of deception by the assessee by adopting a means as indicated in Section 11AC. 10.We do not find any such occasion to have arisen in the present case. As noted above, the Revenue has not disputed the entitlement of the assessee to avail cenvat credit in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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