Remand Is Not Relief: The Supreme Court’s Warning Against “Consider Jurisprudence” in Fiscal Adjudication By Adv. G. Jayaprakash (Former Central Excise Officer)

The recent pronouncement of the Supreme Court deprecating the practice of remanding matters to authorities with a direction to “consider” the issue afresh is not merely a procedural observation. It is a structural correction.

The Court has reminded the system of something fundamental: when a right is legally established, relief must follow. Courts are not referral agencies. They are adjudicatory institutions.

Though the case arose outside the indirect tax domain, its implications for Customs, Central Excise, Service Tax and GST litigation are profound.

In fiscal adjudication, the culture of remand has quietly matured into a habit. Orders are set aside for “reconsideration.” Matters are sent back “in the light of observations made.” Authorities pass fresh orders reiterating earlier conclusions in altered language. Assessees return to appellate forums. Years pass. Interest accumulates. Penalties loom. Relief remains elusive.

This is not adjudication. It is circulation.

In Customs matters under Sections 110 and 124 of the Customs Act, repeated remands keep goods under seizure and bank guarantees alive. In excise and service tax matters under Section 11A or Section 73, remands reopen limitation, sustain extended-period allegations, and perpetuate exposure to interest and penalties. In GST proceedings under Sections 74 and 73, reconsideration orders often replicate earlier reasoning while adding further technical layers.

Where the record is complete and the issue is one of law — classification, valuation, applicability of exemption, jurisdiction of proper officer, transitional credit under Section 140, or the scope of Section 142(11) — remand becomes judicial hesitation disguised as prudence.

The Supreme Court has now cautioned against this hesitation.

If a levy lacks authority of law, it must be struck down. If invocation of extended limitation is unsustainable, it must be annulled. If Section 123 burden cannot arise in absence of “reason to believe,” confiscation must fall. Sending the matter back to the same authority without declaring the legal position only postpones the inevitable.

The constitutional framework demands decisiveness. Article 265 does not contemplate provisional illegality subject to administrative reconsideration. Nor does Article 226 envisage supervisory oscillation. Judicial review must culminate in determination.

The practice of remanding without clearly recording the existence of a right diffuses responsibility. It leaves the authority free to reiterate. It leaves the litigant without closure. It weakens institutional authority.

For CESTAT and the forthcoming GST Appellate Tribunal, the message is equally direct. Appellate forums are empowered to confirm, modify or annul. They are not expected to reflexively remand when evidence is sufficient to decide. Remand is justified where factual inquiry is genuinely incomplete or principles of natural justice were violated. It is not justified where the law is settled and the facts are on record.

In indirect taxation, delay is not neutral. Interest runs. Business suffers. Working capital is blocked. Litigation fatigue sets in. Repeated remand magnifies economic prejudice.

The Supreme Court’s warning therefore restores balance. Relief, when deserved, is not to be deferred in the name of administrative courtesy. The authority of courts lies not in their ability to send matters back, but in their willingness to decide.

In fiscal jurisprudence, remand must remain the exception — not the ritual.

If relief is deserved, grant it then and there.

That is not judicial impatience. It is constitutional fidelity.