TMI Blog2023 (2) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... nding before the Apex Court, nobody can make a guess as to in what way it is going to result. The least the Tribunal could have done was of deciding the matter on merit as per the prevalent law or to keep the matter back. However, it has chosen to remand the matter to the adjudicating authority which is impermissible. This Court in case of COMMISSION OF CENTRAL GST VERSUS JAY CHEMICAL INDUSTRIES LTD. [ 2018 (8) TMI 1392 - GUJARAT HIGH COURT ] the question which was pending before the Tribunal was at large before the High Court. The Court held that in such a situation, the appeal ought to have been kept pending till the decision of the High Court with a liberty to both the sides to approach the Tribunal after the decision of the High Court. The approach of the Tribunal is held to have harassed both the Assessee and the Department, the matter was remanded with a direction to keep it pending and decide after the decision of the High Court in Tax Appeal pending before it on the same issue. In the instant case also, it is noticed that the approach of the Tribunal is to abdicate its duty of deciding the matter on the merits or to retain the matter till the outcome of the pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax and provisions of the Goods and Services Tax (GST) have been brought into the operation. In wake of these changes the levy of KKC has been deleted and accordingly, the petitioner was not liable to pay KKC on taxable services; however, a refund was needed of Cenvat credit of KKC of Rs.43,61,383/(Rupees Forty Three Lakh Sixty One Thousand Three Hundred Eighty Three Only) which was lying unutilised. 2. The Assistant Commissioner rejected the refund claim on the ground that refund of unutilised Cenvat credit of KKC was not admissible under the Cenvat Credit Rules. 2.1 The Commissioner (Appeals) also rejected the appeal of the petitioner and held that such refund claim was inadmissible. 3. A Substantive Appeal before the Appellate Tribunal at Ahmedabad for refund of the said credit has been moved where an application for early hearing was also preferred. The order passed by the Tribunal on 21.10.2020 has aggrieved the petitioner since it decided to remand the matter to the adjudicating authority for passing denovo order. After the outcome of the matter in case of Commissioner of Central Excise vs. Bombay Dyeing and Manufacturing Company Ltd. the grievance on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is passed by the Tribunal after hearing both the sides and if, the Tribunal has remanded the matter back to the Adjudicating Authority for passing de novo order, it is just and proper order. In short, it has defended the action of the authority concerned of not granting the refund of the KKC and also further defended the action of the CESTAT. 4. We have heard the learned advocate, Mr.Paresh Dave assisted by the learned advocate, Mr.Sudhanshu Mishra for the petitioner and learned senior standing counsel, Mr.Utkarsh Sharma for the respondents. 5. The order of the Tribunal which is impugned in the present petition as per its own order involves the question as to whether the present petitioner is entitled for the refund of accumulated unutilized Cenvat Credit of the KKC lying in the Cenvat Account of the petitioner as on 30.06.2018 due to the reason or implementation of the GST from 01.07.2017. The Tribunal chose to remand the matter by passing the following order: 4. I have heard both the sides and perused the records. I find on the subject issue much water flown and this tribunal s two larger bench judgments one in the case of M/s.Gauri Plasticulture Pvt. Ltd. and in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court. The Court held that in such a situation, the appeal ought to have been kept pending till the decision of the High Court with a liberty to both the sides to approach the Tribunal after the decision of the High Court. The approach of the Tribunal is held to have harassed both the Assessee and the Department, the matter was remanded with a direction to keep it pending and decide after the decision of the High Court in Tax Appeal pending before it on the same issue. 7.1 Relevant findings and observations of the Court are as follow: 6.Having heard learned Advocates appearing on behalf of the respective parties and considering the impugned common order passed by the learned Tribunal, we, as such disapprove the manner in which the learned Tribunal has disposed of the appeals. As such, the learned Tribunal ought to have decided the appeals on merits in view of the binding decisions of this Court in the case of Cadila Healthcare Ltd. (supra) and Astik Dyestuff Pvt. Ltd. (supra). However, if the learned Tribunal was of the opinion that in view of subsequent notification No.2/16 dated 03.02.2016, by which explanation has been inserted to the definition of input service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls came up for consideration before the Tribunal on the very issue, the Department had placed heavy reliance on the judgment of the High Court and the Assessee relied on the amendment to the definition of the input credit service and argued that in all pending cases irrespective of the date of amendment, the same would apply. The Tribunal had option to wait for the outcome of Department s appeal in case of the pending appeal of the Essar Steel if, the decision in such appeal was likely to be rendered in a foreseeable future. However, if it was of the opinion that the judgment would not be available in the near future, it could have awaited till the outcome. The approach of the Tribunal was not at all approved by the Court in the following words: 4. In view of such facts, the options before the Tribunal were either to await the outcome of the department's appeal in case of Essar Steel India Ltd (supra) if the decision in such appeal was likely to be rendered in near foreseeable future which would in addition to reducing the effort of both sides would also in many cases eliminate one stage of litigation. However, if the Tribunal was of the opinion that the judgement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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