2011 (3) TMI 1180 - AT - Central Excise

CESTAT Mumbai Tribunal Remands Appeal, Withdraws Commissioner's Remand Power

The Appellate Tribunal CESTAT, Mumbai, allowed the appeal by setting aside the impugned order and remanding it back to the Commissioner (Appeals) for a ... Power of remand by Commissioner (Appeals) - remand prohibited with effect from 11.5.2001 - Commissioner (Appeals) exercising adjudicatory powersPower of remand by Commissioner (Appeals) - remand prohibited with effect from 11.5.2001 - Whether the Commissioner (Appeals) has the power to remand matters to the adjudicating authority with effect from 11.5.2001. - HELD THAT: - The Tribunal applied the amendment effected by the Finance Act, 2001 which, with effect from 11.5.2001, withdrew the power of the Commissioner (Appeals) to remand matters to the adjudicating authority. Reliance was placed on the apex court's observation in MIL India Ltd. vs. CCE that Section 35A was amended to withdraw the remand power and that thereafter the Commissioner (Appeals) continues to exercise the powers of an adjudicating authority. Consistent Tribunal precedent was also noted. On this legal basis the impugned remand by the Commissioner (Appeals) was held to be without power. [Paras 4]The Commissioner (Appeals) does not have the power to remand matters to the adjudicating authority with effect from 11.5.2001; the impugned remand was set aside.Commissioner (Appeals) exercising adjudicatory powers - remand for fresh decision by Commissioner (Appeals) - Appropriate relief and further course where an impugned order of remand (post 11.5.2001) is found impermissible. - HELD THAT: - Having declared that the remand was impermissible, the Tribunal set aside the impugned order and remitted the matter to the Commissioner (Appeals) with a direction to decide the issue in accordance with law after hearing both sides. The remand is therefore not to the original adjudicating authority but a direction for the Commissioner (Appeals) to exercise adjudicatory functions consistent with the statutory position post amendment. [Paras 3, 5]Impugned order set aside; matter remitted to the Commissioner (Appeals) to decide the issue in accordance with law after hearing both sides.Final Conclusion: Appeal allowed by way of remand: the Tribunal held that the Commissioner (Appeals) lacks power to remand matters with effect from 11.5.2001, set aside the impugned remand order and directed the Commissioner (Appeals) to decide the issue afresh in accordance with law after hearing both parties. Issues:Challenge to impugned order based on Commissioner (Appeals) power to remand post 11.5.2001.Analysis:The judgment by the Appellate Tribunal CESTAT, Mumbai, involved a challenge by the Revenue regarding the power of the Commissioner (Appeals) to remand matters to the adjudicating authority post 11.5.2001. The Tribunal noted that as per the Finance Act, 2001, the power to remand by the Commissioner (Appeals) had been withdrawn. Citing the case of MIL India Ltd. vs. CCE 2007 (210) ELT 188 (SC), the Tribunal highlighted that the amendment to Section 35A under the Finance Bill, 2001 explicitly removed the power of the Commissioner (Appeals) to remand matters back to the adjudicating authority for fresh consideration. The Tribunal also referred to its own decision in the case of CCE Raigad vs. Shree Hari Chemicals (I) P. Ltd. reported in 2009 (95) RLT 803 (CESTAT-Mum), where it was held that Commissioner (Appeals) had no authority to remand matters post 11.5.2001. Consequently, the Tribunal set aside the impugned order and remanded it back to the Commissioner (Appeals) for a decision in accordance with the law after hearing both sides. The appeal was allowed by way of remand, and the cross objection was disposed of accordingly.