Commissioner of Central Excise Vs. Mahendra Industries

2. the issue in this case revolves around the question as to whether the commissioner (appeals) has power to remand the case after such power has been deleted by amendment to sub-section (3) of section 35a of the central excise act, 1944. since question of law is involved i admit the appeal.3. the issue on merits is as to whether credit is admissible to the assessee, who was the respondents herein, on the basis of invoices issued by traders, which were found not to be in accordance with notification 15/94 which has prescribed invoices issued by wholesale distributors/dealers of a manufacturer whereas the traders who had issued the invoices in question appear to be of a category other than wholesale traders. such invoices were therefore treated as unacceptable for the purpose of modvat. the assessees had also taken credit on the strength of invoices issued by dealers not registered with central excise authorities at the time of issue of invoices as per the requirement of notification 32/94. before the commissioner (appeals) the plea, which was accepted here that the modvat credit cannot be denied on dealers' invoices as the dealer got registered before 31/12/1994. regarding the aspect of availability of credit on invoices issued by traders the commissioner (appeals) had remanded the case for verification as to whether the traders had directly purchased the goods from the manufacturer. since this aspect would require verification the matter requires to be remitted to the adjudicating authority, i set aside the impugned order and remand the case to the adjudicating authority to verify whether the invoices of the traders tally with the invoices of the manufacturer and to verify whether the traders had directly purchased the goods from the manufacturers. the adjudicating authority shall pass fresh orders after extending a reasonable opportunity of hearing to the assessees.