RUDRAKSH DETERGENT AND CHEMICALS PVT LTD VERSUS C.C.E.-KUTCH (GANDHIDHAM)

Excise Appeal No. 10389 of 2022

(Arising out of OIA-KCH-EXCUS-000-APP-277-2021-22 dated 25/03/2022 passed by

Commissioner of Central Excise, Customs and Service Tax-KUTCH (GANDHIDHAM))

 

RUDRAKSH DETERGENT AND CHEMICALS PVT LTD

VERSUS

C.C.E.-KUTCH (GANDHIDHAM)

 

APPEARANCE:

Shri Vinay Kansara, Advocate appeared for the Applicant

Shri Kalpesh P Shah, Assistant Commissioner (AR) for the Respondent

CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR

HON’BLE MEMBER (TECHNICAL), MR. RAJU

Final Order No. A/ 10210 /2023

DATE OF HEARING: 06.10.2022

DATE OF DECISION: 06.02.2023

RAMESH NAIR

The issue involved in the present case is that whether the re-credit

claimed by the appellant is correct or not in terms of para 2C of area based

exemption Notification No. 39/2001- CE dated 31.07.2001. This appeal was

filed against the Commissioner (Appeals) order whereby the Learned

Commissioner (Appeals) has remanded the matter to the Adjudicating

Authority to keep the matter in abeyance till recredit orders are issued by

the Jurisdictional Assistant Commissioner and then to adjudicate the show

cause notice.

Shri Vinay Kansara, Learned Counsel appearing on behalf of the

appellant submits that the order of the Learned Commissioner (Appeals)

travels beyond the scope of show cause notice in as much as the Learned 

Commissioner has given the directives/order to carry out reassessment after

12 years and direction to keep show cause notice in abeyance. The

Learned Commissioner himself could have finally decided instead of

remanding it and giving direction for keeping the show cause notice in

abeyance. He submits that the appellant have complied with the provision of

Para 2C of Notification No. 39/2001- CE dated 31.07.2001 therefore, there

is no reason to object the re-credit. He submits that there is no challenge

to re-credit availed for 5 years and the show cause notice was issued after 5

years invoking larger period under Section 11 A for recovery of duties on the

ground that they are not covered under the Notification.

He submits that while taking the re-credit as per para 2-C the same

has not been disputed and proceedings after 5 years would be barred by the

Limitation. The Order-In-Appeal accepts the above facts and set aside the

order in original on the ground that it is pre mature. He submits that once

the proceedings and the issue of SCN was held as pre mature than it ought

to be set aside and the OIA cannot travel beyond the scope of show cause

notice and beyond the ground of appeals before him. He submits that the

ground before the Commissioner (Appeal) taken by the appellant was of

time bar therefore, the Learned Commissioner instead of deciding the case

on time bar remanded the matter to the Adjudicating Authority which is

incorrect and illegal. As regard refund/ recredit of education cess and SHE

cess was not admissible at relevant time hence Section 11 A with larger

period not invokable. He submits that as per the Hon’ble Supreme Court

judgment in the case of SRD Nutrients Pvt Ltd – 2017 355 ELT 481 (SC)

the credit on education cess and SHE cess was allowed. Even though

subsequently the Hon’ble Supreme Court has passed the contrary

judgment in the case of Unicorn Industries – 2019 (370) E.L.T. 3 (S.C.) but

it will not affect the demand in this case being time barred. He placed

reliance on the following decision including their own case.

 Commissioner vs. Rudraksh Detergent & Chemicals Pvt Ltd – 2019

(368) ELT (A.341) (SC)

 C.C & CE, Rajkot vs. Rudraksh Detergent & Chemicals Pvt Ltd –

2010 (260) ELT 69 (Tri.Ahmd)

 Kunhayammed vs. State of Kerala – 2001 (129) ELT 11 (SC)

 Pernod Ricard India (P) Ltd vs. Commissioner of Customs -2010

(256) ELT 161 (SC)

 Medley Pharmaceuticals Ltd Vs. CCE ,Daman- 2011 (263) ELT 641

(SC)]

 RNB Carbides & Ferro Allpys Pvt Ltd Vs. UOI – 2021 –TIOL- 2233-HC

AHM-CX

Shri Kalpesh P Shah, Learned Assistant Commissioner (AR) appearing

on behalf of the Revenue reiterates the finding of the impugned order.

We have carefully considered the submission made by both sides and

perused the records. We find force in the argument of learned counsel that

the Learned Commissioner (Appeals) instead of remanding the matter to

the Jurisdictional Assistant Commissioner he could have decided the matter

finally at his end. The appellant emphatically argued on the issue of

limitation. The learned Commissioner (Appeals) instead of deciding the

limitation remanded the matter which in our view is prima facie incorrect. It

is the submission of the learned counsel that after holding the entire

proceeding pre-mature the learned commissioner remanded the matter

instead of deciding finally on this observation itself. We find that considering

the facts and circumstance of the present case the learned Commissioner

(Appeals) ought not to have remanded the matter to the Adjudicating

Authority particularly when the appellant have raised the ground on

limitation. Therefore, we are of the view that the matter should go back to

the Commissioner (Appeals) for deciding the appeal before him finally

without remanding the matter to the Adjudicating Authority. 

4.1 Accordingly, we set aside the impugned order and remand the matter

to the Commissioner (Appeals) for passing fresh order on all the grounds

made before him by the appellant.

Appeal is allowed by way of remand to the Commissioner (Appeals).

(Pronounced in the open court on 06.02.2023)

RAMESH NAIR

MEMBER (JUDICIAL)

RAJU

MEMBER (TECHNICAL)