ORDER
Shri. S.L. Peeran
1. Both these Revenue appeals arise from a common order-in-original No. 39/96 dated 14.3.96 passed by the Commissioner of Central Excise & Customs, Coimbatore. Revenue is aggrieved with a portion of the OIO i.e. with regard to the findings arrived at by the Commissioner in para-36 wherein he has accepted the assessee’s contention regarding the claim for modvat credit. He has not allowed the modvat credit as claimed but has directed jurisdictional Assistant Commissioner of the division to examine the duty paying documents presented by the notice and after ensuring that the inputs had been utilized in the manner prescribed under the relevant rules, then grant the benefit of small scale exemption upto Rs. 30 lakhs for the period from 1.4.94.
2. Ld. SDR submits that identical order of the Commissioner came up for hearing yesterday i.e. on 28/6/01 in the case of CCE Coimbatore Vs Sree Vasanthi Mills and the Bench was pleased to uphold the Commissioner’s order and at the same time observed that the Commissioner shall take into consideration the grounds of appeal made in the revenue appeal in de novo consideration. He contends being a similar matter, this appeal be disposed of likewise.
3. On the other hand Ld. Counsel Shri J. Shankar Raman appearing for the assessee contends that they have challenged the confirmation of demands and confiscation of goods and penalty and their appeal be also taken up for disposal.
4. Considered. We are not in a position to accept the plea of the Counsel because their plea will be considered only on the dates when their appeals are listed. In the present case, the Commissioner has merely remanded the matter with a direction to examine the aspect on grant of modvat credit, which has been challenged by the Revenue. The Tribunal on identical facts, on an identical order passed by the same Commissioner has held in the remand order in CCE Vs Sree Vasanthi Mills in para-6 as follows:-
“6. We have considered the prayer and have examined para-19 by which the Commissioner has directed the AC to reconsider the plea of modvat credit claimed by the assessee. Now, it is well settled that where modvat is claimed, the said claim cannot be rejected, merely because of certain procedural lapses. However, this issue is kept open and the Asst. Commissioner on de novo consideration shall reconsider this plea also raised by the Revenue and with an open mind redecide the issue after giving opportunity of hearing to the assessee. Thus, both the appeals are allowed by remand to the AC to reconsider the prayer of Revenue as well as the prayer of assessee on the aspect of modvat credit. Ordered accordingly.”
5. We are of the considered opinion that there is no need to take a different view than already expressed in the case of CCE Coimbatore Vs Sree Vasanthi Mills. Therefore, the appeals of Revenue are allowed by remand to the jurisdictional Asst. Commissioner to consider the prayer of the Revenue as well as the prayer of assessee on the aspect of modvat credit as already observed in the above noted appeal of CCE Vs SREE VASANTHI MILLS. (E Appeal No. 1377/1997)
Ordered accordingly.
(Pronounced & Dictated in open court)