2011 (2) TMI 350 - AT - Service Tax

Department appeals remand order under Central Excise Act; Commissioner (Appeals) lacks remand power post-amendment.

The Department appealed against an order remanding a matter to the original Adjudicating Authority under section 35A(3) of the Central Excise Act, 1944. ... Powers of remand - Ex parte order - Since the notice for hearing had been sent to the respondent well in time, none appeared on their behalf and, therefore, so far as the respondent is concerned, the matter is being decided ex parte - Departmental Representative who citing the judgment of Hon'ble Supreme Court in the case of MIL India Ltd. v. CCE [2007 -TMI - 1196 - SUPREME COURT OF INDIA]held that after the amendment of section 35A(3) of the Central Excise Act, 1944 in the year 2001, the Commissioner (Appeals) does not have the power of remand and in this case, the Commissioner (Appeals)'s order remanding the matter to the original Adjudicating Authority is, therefore, contrary to the provisions of law and is not sustainable - The Department's appeal is accordingly allowed. Issues:Department's appeal against order-in-appeal remanding matter to original Adjudicating Authority as per law - Powers of remand by Commissioner (Appeals) under amended provisions of section 35A(3) of the Central Excise Act, 1944.Analysis:The Department filed an appeal against order-in-appeal No. 316/ST/MRT-II/2010, dated 31-8-2010, passed by CCE (Appeals), Meerut, remanding the matter to the original Adjudicating Authority for fresh adjudication. The Department contended that the Commissioner (Appeals) lacked the power of remand under the amended provisions of section 35A(3) of the Central Excise Act, 1944. The Department's appeal was based on the argument that the Commissioner (Appeals) did not possess the authority to remand the matter.During the hearing, the respondent did not appear, leading to the matter being decided ex parte. The Departmental Representative, citing judgments of the Hon'ble Supreme Court and the Hon'ble Punjab & Haryana High Court, argued that post the amendment of section 35A(3) of the Central Excise Act, 1944 in 2001, the Commissioner (Appeals) was devoid of the power of remand. The representative contended that the order remanding the matter to the original Adjudicating Authority was contrary to the law and not sustainable.Upon careful consideration of the submissions, it was noted that the issue of whether the Commissioner (Appeals) could remand the matter had been settled by judgments of the Hon'ble Supreme Court and the Hon'ble Punjab & Haryana High Court. It was established that during the relevant period, the Commissioner (Appeals) did not possess the authority to remand matters. Consequently, the impugned order remanding the matter to the original Adjudicating Authority was deemed incorrect. The order was set aside, and the matter was remanded to the Commissioner (Appeals) with directions to decide the case on its merits at his level. As a result, the Department's appeal was allowed.This comprehensive analysis delves into the key issues of the Department's appeal against the remand order and the powers of remand vested in the Commissioner (Appeals) under the relevant legal provisions. The judgment clarifies the legal position regarding the Commissioner (Appeals)'s authority to remand matters and provides a detailed rationale for setting aside the impugned order and remanding the case for fresh adjudication.