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TMI Blog2023 (5) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 dated 28th June, 2017 (Tariff heading 9969). For the generation of electricity, the appellant requires essential raw-material "Coal" which is being procured by them from Coal India Limited (CIL). In order to comply with the guidelines laid down by the Ministry of Environment and Forest, they are mandatorily required to get the raw coal washed before captive consumption for meeting the stipulated percentage ash. To undertake this activity, the appellant have engaged some washeries in private sector on job work basis for the job of coal beneficiation who in turn supplies the washed coal to the applicant. During the process of washing of coal at the washery/job worker, certain low quality coal is also generated which is commonly referred to as "Coal rejects" which is disposed off/ sold directly by the washery/job worker in an environment friendly manner 3. The appellant filed an application before the Authority for Advance Ruling, Punjab (hereinafter referred to as, "AAR, Punjab"). The appellant sought Advance Ruling on the following questions before the AAR, Punjab: 1. Whether the coal rejects whose invoice is raised by the applicant upon washery/job worker is taxable under GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proportion of exempt/taxable turnover. 5. Appeal before the Appellate Authority for Advance Ruling, Punjab: The appellant aggrieved by the said order passed by the AAR, Punjab, filed an appeal with the Appellate Authority for Advance Ruling, Punjab seeking further clarification to para 3 of their application. The appellant submitted that the impugned order lacks clarity insofar as Ruling on Question no. 3 of their Advance Ruling application is concerned and AAR, Punjab, did not take cognizance of various factual and legal aspects. The appellant has also submitted that in order to answer the 3rd question of the Applicant concerning the 'admissible proportion of ITC available to the Applicant', AAR vide Para 8.6 of Impugned Order has simply pronounced a ruling that the same will be governed as per Rule 42 of CGST Rules, 2017 ("the Rules") and later ruled that ITC is admissible to the Appellant in proportion of taxable & exempt turnover, The appellant sought further clarity on Rule 42 of the CGST Rules as how to calculate the admissible ITC applicable to them as they are engaged in taxable as well as exempted supplies. 6. RECORD OF PERSONAL HEARING: The appellant was accorded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 97 of the CGST Act, 2017, as submitted by the representative of the appellant during the Personal Hearing. (b) Whether the AAAR is empowered to remand back the case on the issue of maintainability (Case laws) 7.3 On the issue raised in point (a) above we are of the opinion that the question of maintainability was not examined at the AAR stage and it would be in the fitness of the things that the issue be re-examined by AAR itself. 7.4 Further, on the issue raised in point (b) above, it is to state that as per subsection (1) of Section 101 of the CGST Act 2017, the appellate authority may pass such order as it thinks fit, confirming or modifying the ruling appealed against or referred to. The relevant portion of the Section is reproduced as under: "The Appellate Authority may, after giving the parties to the appeal or reference an opportunity of being heard, pass such order as it thinks fit, confirming or modifying the ruling appealed against or referred to. (emphasis supplied) As the power of remand back is not clearly detailed in the provision, it would be in fitness of things to refer to other Acts wherein similar provisions have been provided to appellate authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into force w.e.f 11th May, 2001, powers of remand by allowing the appeal of the Commr.(A) have not been taken away specifically. In that view of the matter, we are of the considered opinion that the appellate authority, viz., Commr. (A) was vested with the power while deciding the appeal as he deemed fit by confirming, modifying or annulling the decision or order appealed against him. In our considered opinion, order of remand necessarily annuls the decision, which is under appeal before the appellate authority. Therefore, we entirely agree with the view taken by the learned single Member of the Tribunal that even after amendment of Section 35A of the Central Excise Act, the appellate authority has the power to set aside the decision, which is under appeal before it and it has power to remand the matter to the authority below for its fresh consideration. c) In the case of A.S. BABU SAH DESIGNS Versus COMMISSIONER OF C. EX. (APPEALS), CHENNAI-I {2020 (38) G.S.T.L. 161 (Mad.) IN THE HIGH COURT OF JUDICATURE AT MADRAS} it was observed that Commissioner (Appeals) can pass orders as he thinks fit including an order of remand. d) In the case of M/s ALD Automotive Pvt. Ltd. Vs, Asst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that "There may be circumstances where only just and proper order could be remand of the matter for fresh adjudication. For example, if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. This would create an anomaly and cause prejudice to the Revenue as it would bring an end to the litigation without adjudicating on the demand raised by the show cause notice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, we are of the view that power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944." 7.6 We, also observe that the direction for remand has also been resorted to by other AAARs in the following cases: a) M/s. D.M Net Technologies-Gujarat AAAR Order dated 22.08.2022 b) M/s. Myntra Designs Pvt. Ltd.- Karnataka AAAR Order dated 21.1162022 Hence, from the above, it is appar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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