(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) 1. The present appeal is preferred by the Department against common order dated 18.02.2008 of the Customs Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Central Excise Appeal No. 3451 of 2005 as well as Appeal No. 3532 of 2005.
2. Learned Senior Counsel Mr. R.J. Oza assisted by Ms. Mittal Upadhyay, learned advocate for the appellant stated that against the impugned common order, the Department had preferred Tax Appeal No.1132 of 2009 raising two questions of law as under:
“(1) Whether the Cenvat credit is available on inputs used in manufacture of exempted goods in contravention of provisions of Rules 57AD of the Central Excise Rules, 1944?
(2) Whether the CESTAT has committed an error in deciding the appeal relying upon the decision of the Larger Bench of the Tribunal more particularly against the said decision, the department has preferred SLP, wherein the leave has been granted?”
3. In the memorandum of present appeal, the appellant has formulated additional question of law to the effect whether in the facts and circumstances of the case, the Tribunal committed substantial error of law by not deciding appeal of the Revenue against the non-imposition of penalty and non-conferment of interest leviable on the respondent.
4. The learned counsel submitted that the present appeal is separately filed so as to obviate a technical objection inasmuch as a separate appeal is required to be filed because the respondent had preferred two separate appeals before the Tribunal. He placed on record the order dated 24.03.2011 of the Division Bench of this Court dismissing the said Tax Appeal No.1132 of 2009.
4.1 From the oral order dated 21.03.2011 passed in said Tax Appeal No.1132 of 2009, it is seen that the Division Bench of this court dismissed the appeal by relying on the decision of the Apex Court in C.Ex. v. Gujarat Narmada Fertilizers Co. Ltd. [2009 (240) ELT 661 (SC)].
4.2 Learned counsel also pointed out that against the aforesaid oral order dated 24.03.2011 in the said Tax Appeal, the respondent had preferred a review application being Miscellaneous Civil Application No. 199 of 2011. A Division bench of this Court disposed of that application by order dated 30.03.2012 inter alia observing as under:-
“We are of the opinion that the issue requires fresh consideration by the tribunal. On one hand the decision of this court in case of Gujarat Narmada Fertilizers Co. Ltd. (supra) which was the sole decision relied upon by the Tribunal stands reversed. On the other hand, the case of the applicant- assessee is that there were several other contentions which could have been decided by the Tribunal resulting in ultimate decision in favour of the applicant”
5. Accordingly, the case is remanded and it was stated before us that the same is pending before the Tribunal. In this light the present appeal shall follow the same course.
6. Accordingly, the case is remanded to the Customs Excise and Service Tax Appellate Tribunal for fresh consideration in accordance with law after hearing both the sides by connecting the same with the proceedings remanded by the Division Bench of this court by its aforementioned oral order dated 30.03.2012 passed in Miscellaneous Civil Application No. 199 of 2011.
7. This appeal stands disposed of with above directions.
(V.M. SAHAI, J.) (N.V. ANJARIA, J.)
(SN DEVU PPS)