Abhay Industries vs Union of India

The question of law had been framed by the appellants. We do not propose to frame questions in view of the order to be passed.

The main submission on behalf of the appellants in both the appeals is that after the matter was heard on 29-1-2009, they submitted written submissions in respect of the arguments advanced on 31-1-2009. An order came to be passed on 3-2-2009 [2009 (245) E.L.T. 400 (Tri. - Ahmd.)]. According to learned counsel they found that most of the contentions have not been considered and accordingly they filed an application for rectification. That application has been rejected on the ground that the arguments advanced have been considered. Hence, the present appeal.

We have perused the grounds of appeal raised in the appeal memo as also the written submissions filed by the appellants and the order passed in the rectification application.

It is no doubt true that on behalf of the respondents, the learned counsel has pointed out to us that initial order was remanded earlier by the Tribunal to the A.O. only for the purpose of de novo consideration in so far as calculations are concerned and therefore, A.O. had rightly restricted himself in terms of the order of remand to only calculations which the Tribunal has accepted.

We can understand if the Tribunal considering the grounds raised and the points in the written submissions had rejected the said contentions as being irrelevant for the purpose of deciding the controversy. We do not find either in the order of the Tribunal or in the order passed by the AO, that these points has been rejected on that ground. Apart from that the Tribunal is the last fact finding authority. Considering the contentions raised by the appellants as mentioned above, the points raised by them ought to have been decided and considered.

We are clearly of the opinion that the impugned order passed in appeal is liable to be set aside and matter restored to the file of the Tribunal. The Tribunal after hearing the appellant to pass fresh order according to law. Appeals disposed of accordingly.

We make it clear that the Appellate Tribunal will limit itself to the issue of calculation.