TMI Blog2023 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... anding the Commissioner (Appeals) has observed I find that the adjudicating authority had concluded that their application for revalidating the DEPB licence is lying alive before the PRC. I find the aforesaid facts and issues need proper verification and re examination by the original authority - thus, It is seen that the Commissioner (Appeals) has not examined the issue on merits and therefore the said order cannot be sustained. Power of Commissioner (Appeals) to remand - HELD THAT:- The issue becomes infructuous, as there was no need to remand the matter. The Commissioner (Appeals) to decide the issue on merit - the order ser aside and matter remitted back to the Commissioner (Appeals) to decide the issue of the refund on merits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een from the facts of the case that the respondents had utilized DEPB Scripts for payment of Clean Energy Cess part of the CVD. Revenue has sought to disallow the utilization of DEPB script for the said purpose and the original Adjudicating Authority had confirmed the demand. The Commissioner (Appeals) has however set aside the said order. Aggrieved by the said order Revenue is in appeal before Trial Court. 3. Learned Counsel appearing on behalf of the Respondent relied on the impugned order. He pointed out that the provisions invoked in the appeal memorandum are not applicable to the instant case. 4. We have carefully considered the rival submissions, we find that in this appeal the dispute involved is if the respondent could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the intention of the government in respect of clean energy cess levied as additional duty of customs levied under section 3(1) of the Customs Taritt Act. 1975, such restrictions would have been incorporated in the Notification governing DEPB scheme. Le, Notification No. 97/2009-Cus. Supra. However, there is no restriction under DEPB scheme or Notification No. 97/2009- Cus. Supra, to this effect. Without appreciating the correct position of law, I find that the impugned order is only referring to the Cenvat credit Rules which is completely whimsical and capricious where customs duty payment is d subject matter. It is also seen that the Commissioner (Appeals) has allowed the appeal on the ground of limitation as well. Revenue in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to refund of the said amount in cash. The Commissioner (Appeals) had remanded the matter back to the Adjudicating Authority for verification of facts. 2.4 It is noticed that revenue has field cross objections on the ground that the Commissioner (Appeals) has no power to remand. 3. We have considered rival submissions, we find that the Commissioner (Appeals) has not dealt with the issue on merits. While remanding the Commissioner (Appeals) as observed as follows: 6. I find that the appellant imported steam coal by filing various Bills of Entry and paid duty leviable on coal including Clean Energy Cess. The appellant had paid the cess at the time of clearance by debit in the DEPB Scrip. Therefore, Less Charge Notice dated 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be sustained. 3.2 The second issue before us is the power of remand of Commissioner (Appeals) which has been raised by cross objection filed by the revenue. 3.3 We find that the matter is already settled by the M/s. Medico Labs reported in 2004 (173) ELT 117 (H.C), wherein following has been observed: 10. The appellant-Commissioner of Central Excise, Ahmedabad in both these appeals has annexed the order dated 12-5-2003 passed by the Tribunal in other cases. From the said judgment of Larger Bench of the Appellate Tribunal, it clearly appears that heavy reliance was placed by the Tribunal on the judgment of the Hon ble Supreme Court in cases of (i) Shashikant Laxman Kale v. Union of India - AIR 1990 SC 2114 (ii) K.P Verghes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the Tribunal. 14. We must also state that even after amendment, which has come into force with effect from 11-5-2001, powers of remand by allowing the appeal of the Commissioner (Appeals) have not been taken away specifically. In that view of the matter, we are of the considered opinion that the appellate authority viz. Commissioner (Appeals) 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 ame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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