ST - Although Tribunal is undoubtedly entitled to remand a matter, same cannot be at its whim and fancy or mere ispi dixit but a conclusion based on reasons: HC
By TIOL News Service
MUMBAI, OCT 24, 2018: ALLEGING excess availment of CENVAT credit of Rs.46.15 crores, a demand notice was issued on 1st April 2010. The assessee contested the demand, both on merits as well as limitation. The Commissioner held that the demand is time barred and so dropped the proceedings.
Against this o-in-o dated 07.06.2013, Revenue had filed an appeal before the CESTAT.
While remanding the matter to the adjudicating authority, the CESTAT - 2017-TIOL-4465-CESTAT-MUM had observed thus -
ST - Impugned order does not provide any head or tail thereof - elementary jurisprudence not followed by adjudicating authority - Writing several pages with reproduction of ELT headlines is irrelevant in justice administration - Matter remanded: CESTAT [para 2]
The assessee is before the Bombay High Court and urges the following question of law for consideration:-
Whether in the facts and circumstances of the case and in law, the Tribunal was correct in remanding the matter to the adjudicating authority?
The appellant submitted that neither in the Review Order nor in the Appeal filed by the Revenue against the order dated 7th June, 2013 of the Commissioner, is any grievance made of it, being incomprehensible.
Nonetheless, the impugned order passed by the CESTAT does not record the dispute which requires adjudication nor does it record the grievance of the parties but merely proceeds on its perusal of the order (of the Commissioner) and comes to the conclusion that the order has been passed without any reasons inasmuch as same does not exhibit the mind of the author.
The counsel for the Revenue submitted that no prejudice would be caused as the impugned order has merely restored/remanded the show cause notice to the Commissioner for fresh adjudication.
The High Court considered the submissions and inter alia observed -
++ We do not find any recording of the controversy in dispute and the grievance of the parties to it. The impugned order even does not record whether any of the parties at the hearing urged that the order dated 7th June, 2013 of the Commissioner was impossible to understand, therefore, making it difficult to challenge.
++ Section 35C of the Act, while dealing with the orders of the Tribunal does provide that it may, if it thinks fit, refer the case back to the authority which passed the order in appeal. However, the word "may if it thinks fit", is not an arbitrary or subjective satisfaction of the Tribunal but a satisfaction reached through the filter of reasons in the context of the grievance of the parties before it.
++ In the impugned order, we find that the Tribunal has concluded that the order of the Commissioner in appeal is, incapable of understanding without itself referring to the dispute and any part of the finding of the order which are impossible to understand. Therefore, although the Tribunal is undoubtedly entitled to remand a matter for fresh consideration, the same cannot be at its whim and fancy or mere ispi dixit but a conclusion based on reasons.
++ The party in whose favour the order is passed is certainly prejudiced if the order in its favour is being set aside without any reasons. Further, there is a manner of passing orders viz. supported by reasons. This giving of reasons by authority is now an undisputed part of Rule of law [CIT v/s. Shukla & Brothers - 2010-TIOL-131-SC-CT]
In fine, the substantial question of law is answered in negative. The impugned order was quashed and set aside and restored to the Tribunal for fresh consideration.
The High Court also added that its observations should not be construed as restraining the Tribunal from passing an order of remand, if its conclusion is supported by reasons.
The Appeal was allowed in the above terms.
(See 2018-TIOL-2223-HC-MUM-ST)
