Commissioner (Appeals) by deciding the case of merits did not exceed its jurisdiction

In Hindustan Aegis LPG Limited v. Commissioner of Excise, Mumbai-II [APPEAL No. E/51/2008 dated October 12, 2018], Hindustan Aegis LPG Limited (“the Appellant”) had filed a refund claim of Modified Value Added Tax (“MODVAT”) which was rejected by the Assistant Commissioner In Order-In Original (“OIO”) on the ground of limitation. Further, appeal filed by the Appellant against the OIO was again rejected by the Commissioner (Appeals) by upholding the OIO on ground of limitation as well as on merit.

Aggrieved by the same, the Appellant has filed the current appeal in CESTAT, Mumbai against the Order-in-Appeal No. SRK/384/MII/2007 dated October 10, 2007 (“OIA”) on the ground that the Commissioner (Appeals) by rejecting the refund on merit alongside limitation, has traversed beyond the OIO and that it is impermissible since Assistant Commissioner in OIO did not record his views on merits.

Due to difference of opinion amongst the judicial members and technical members, the matter was referred to a third member.

The Hon’ble CESTAT, Mumbai noted that the Assistant Commissioner did not conclude the order on the sole ground of limitation, but OIO provides that the same was initially also taken up on merit and having relied on the judgment of Union Of India V. Slovak India Trading Company [2006 (201) ELT 559 Kar], that it was preferred to take the less controversial ground but leaving the claim unexpressed on the conclusion for eligibility. Thus, the Appellant at a later stage cannot contend that eligibility on merit was not an issue which was dealt by the Assistant Commissioner

Therefore, the Commissioner (Appeals) did not exceed its jurisdiction. The appeal was thereby rejected and dismissed.

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