Point of Law: CENVAT credit -As per the mandate of Section 35G of the Central Excise Act; appeals to the High Court can be admitted.

JUDGMENT:

Soumitra Saikia, J.

This Central Excise appeal preferred by the Commissioner of Central Goods & Service Tax and Central Excise as the appellant arises out of the order dated 18.12.2019 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred as “CESTAT”), Eastern Regional Bench, Kolkata.

2. The brief facts necessary to decide this Appeal are as under:

(i) The assessee namely the respondent herein is engaged in the manufacture of Pan Masala and Pan Masala containing tobacco classifiable under Chapters 21 and 24 of the First Schedule to the Central Tariff Act, 1985 at its factory situated at Jorhat, Assam. The appellant is availing the benefit of exemption under Notification No. 8/2004-CE dated 21.01.2004, as amended by Notification No. 28/2004-CE dated 09.07.2004. The period in dispute in this appeal is from March 2004 to March 2005.

(ii) Order dated 06.02.2007 was issued by the Commissioner whereby the direction was made for recovery of amount deposited in the Escrow account by way of forfeiture for the alleged violation of the conditions of the exemption notification availed by the appellant as aforesaid. Against the said order, in the appeal filed by the assessee, the Tribunal vide Order dated 06.08.2007 remanded the matter back to the Commissioner for fresh consideration since the aforesaid orders were issued without granting opportunity of being heard in violation of principles of natural justice.

(iii) Pursuant to the Tribunal’s Order dated 06.08.2007, the Commissioner re-decided the matter in remand proceedings vide Order dated 30.01.2008, whereby it confirmed the forfeiture of amount deposited in Escrow account consequent to findings made with regard to violation of conditions of exemption notification and allowed the assessee to take the CENVAT Credit back to their account which the assessee had utilized at the time of clearance of goods during the relevant period.

(iv) Thereafter, the Revenue challenged the Order dated 30.01.2008 passed by the Commissioner before the Tribunal on the ground that the same travelled beyond the scope of the directions made by the Tribunal vide previous Order dated 06.08.2007. In the said appeal by the Revenue, the Tribunal in its order dated 17.03.2015 noted that the other Show Cause Notices issued for disallowing CENVAT Credit were pending in parallel proceedings which were not considered by the Commissioner. On the said observations, the Tribunal again set aside the order dated 30.01.2008 passed by the Commissioner and remanded the matter for fresh consideration on the point of admissibility of CENVAT Credit.

(v) The Commissioner re-decided the matter and vide Order dated 31.03.2017 held that the assessee had violated the conditions of the exemption notification as was already decided in previous Order-in-Original dated 30.01.2008 which had attained finality. He further held that the charges framed against the assessee for wrong utilization of credit during the period March 2004 to March 2005 had already been dropped by the then Addl. Commissioner, Central Excise, Dibrugarh, vide Order no. 02/Addl. COMMR/ADJ/CE/DIB/09 dated 30.01.2009 and that there is no pending Show Cause Notice issued to the appellant assessee in relation to admissibility of Cenvat Credit. Based on above observation, the Commissioner had concluded that since proceedings for alleged wrong credit had already been dropped, the question of further allowing credit does not arise at all.

(vi) Being aggrieved, by the order of the Commissioner, the assessee preferred an appeal before the Tribunal. The Tribunal vide the impugned order dated 18.12.2019 held that in the earlier proceedings, the material facts that the eligibility of credit utilized by the assessee which stood decided in favour of the assessee vide Additional Commissioner’s order dated 30.01.2009 were not before the Tribunal ea