TMI Blog2023 (5) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... A (as applied to cases of Service tax vide Section 85(5)) is similar to that used in Section 101 of CGST Act, 2017. Therefore, the jurisprudence so developed over the years may be referred as para-materia while ascertaining the ambit and scope of the powers of the AAAR. Thus, it is apparent that the appellate authority can remand back the appeal of the appellant to the AAR, Punjab to re-examine the maintainability of the application filed by the appellant as per sub-section (2) of Section 98 of the CGST Act, 2017 and accordingly pass the order on merit. - Order No. 02/AAAR/2023 333-35 - - - Dated:- 20-3-2023 - SH. RAJESH PURI, AND SH. KAMAL KISHOR YADAV, IAS, MEMBER Represented By : Mr. Atul Gupta, Chartered Accountant PROCEEDINGS At the outset, we would like to make it clear that the provisions of both the Central Goods and Services Tax Act, 2017 and the Punjab Goods and Services Tax Act, 2017, (hereinafter referred to as, CGST Act, 2017 and PGST Act, 2017 ) are the same except for certain provisions Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the corresponding si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng: Yes, Coal rejects are to be classified under HSN 2701 and are taxable at 5% GST Rate + Rs 400 PMT compensation Cess. 2. If the answer to above question is yes, whether Applicant is eligible to avail Input Tax Credit (for brevity, ITC ) of GST and Compensation Cess of raw coal brought from its supplier and transferred to washery/job worker for cleaning? Advance Ruling: Where the goods are being received in lots or instalments, the registered person shall he entitled to take credit upon receipt of the last lot or instalment. Thus, if the applicant fulfils the eligibility conditions as prescribed under Section 16 of CGST Act, 2017 and PGST Act, 2017 and if the type of ITC does not fall under the categories prescribed under Section 17 of CGST Act, 2017 and PGST Act, 2017, the applicant is eligible to avail Input Tax Credit of GST and Compensation Cess of raw coal brought from its supplier and transferred to washery/job worker for cleaning. Further, the principal shall he entitled to avail ITC in relation to goods sent directly to the premises of job-worker. 3. If the answer to above question is yes and ITC is admissible, what is the admissible proportion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity as the criteria for apportionment, the Authority observed this would mean that we intend to rewrite Rule 42 and Rule 43 of the CGST Rules, 2017. To this, the appellant replied that the compensation cess is out of purview of the said rules as it is not on ad-valorem but on specific basis. 6.3 Further, the Appellate Authority desired to know under which clause of subsection (2) of section 97 of the CGST Act, 2017 they are seeking Advance Ruling to which they replied that they are seeking Advance Ruling under clause (d) of the said sub-section which provides admissibility of ITC on tax paid or deemed to have been paid. 7. DISCUSSIONS AND FINDINGS: We have carefully examined the appeal filed by the appellant and the additional submissions made by appellant and observed that the AAR, Punjab have covered the application of the appellant under the ambit of clause 3 of sub-section (2) of Section 97 of the CGST Act 2017, whereas the appellant during the Personal Hearing submitted that they have sought Advance Ruling under clause (d) of sub-section (2) of Section 97 of the CGST Act, 2017 which provides for admissibility of ITC on tax paid or deemed to have been paid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944). A bare perusal of the above sections shows that the language used in the section 35A (as applied to cases of Service tax vide Section 85(5)) is similar to that used in Section 101 of CGST Act, 2017. Therefore, the jurisprudence so developed over the years may be referred as para-materia while ascertaining the ambit and scope of the powers of the AAAR. 7.5 Therefore, we refer to the following cases for better understanding the scope and ambit of powers to Appellate Authority and whether the same includes power to remand back: a) The Hon ble Supreme Court in UOI v. Umesh Dhaimode, 2002-TIOL-415-SC-CUS , in the context of Section 128(2) of the Customs Act, the Court held that As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know the reasons for the quasi-judicial body while passing of its order. Thus, the Assessing Officer is duty bound to give cogent reasons for rejecting the specific plea raised by the petitioner. However, the Assessing officer has failed to do so. 9. Thus, for the reasons stated above, this court has no other option but to set aside the assessment order dated 21.022017 and the assessment order dated 01.03.2017, and to remand the case back to the Assessing officer. This court directs the Assessing officer to give an opportunity of personal hearing to the petitioner, and to deal with each and every plea raised by the petitioner . (e) In the case of Commissioner of Service Tax Vs. Associated Hotels Ltd. [2015 (37) STR 723 (Guj.)], the Hon ble High Court of Gujarat has given its verdict as to whether the Commissioner (Appeals) exercising powers under Section 85 of the Finance Act, 1994 has the power to remand the proceedings back to the adjudicating authority, the relevant portion of para-4 is reproduced as under: If proper inquiry is not conducted or the proceedings is decided ex-parte, it would not be necessary in every case that the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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