2019 (1) TMI 55 - AT - Central Excise

Tribunal Upholds Power to Remand Cases Post-Amendment

CGST & Excise, Howrah Versus M/s Ballyfab International Ltd.

The Tribunal allowed the condonation of delay in filing the appeal and upheld the Commissioner (Appeals)' power to remand matters post-amendment of ... Jurisdiction - power of Commissioner (Appeals) to remand the matter w.e.f.11.05.2001 - amendment of Section 35A (3) of the Central Excise Act, 1944, by the Finance Act, 2001 - interpretation of statute - Held that:- The similar issue on interpretation of the above provision, came up before the Hon’ble Supreme Court in the case of Union of India Vs. Umesh Dhaimode [1997 (2) TMI 140 - SUPREME COURT OF INDIA], wherein the Hon’ble Supreme Court after analyzing the provision, held that power to remand the matter to the authority below for fresh decision is inbuilt in the aforesaid provision. Thus, the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3) - appeal dismissed - decided against Revenue. Issues involved:Delay condonation in filing appeal, validity of remand by Commissioner (Appeals) post-amendment, interpretation of Section 35A (3) of Central Excise Act, 1944.Analysis:1. Delay Condonation in Filing Appeal:The Appellant filed a Miscellaneous Application seeking condonation of an 8-day delay in filing the appeal before the Tribunal. The delay was condoned after considering submissions from the ld.D.R. for the Revenue and reasons explained in the application. The Miscellaneous Application was allowed, and the appeal was taken up for final disposal with the consent of both parties.2. Validity of Remand by Commissioner (Appeals) Post-Amendment:The appeal was against an Order-in-Appeal that set aside the Order-in-Original and remanded the matter for fresh adjudication. The Appellant Revenue argued that post-amendment of Section 35A (3) of the Central Excise Act, 1944, the power of the Commissioner (Appeals) to remand was taken away. The ld.D.R. relied on a Supreme Court decision to support this argument. However, the ld.Advocate for the Respondent argued in favor of the impugned order, citing a High Court decision that upheld the Commissioner (Appeals)' power to remand even after the amendment.3. Interpretation of Section 35A (3) of Central Excise Act, 1944:After hearing both sides and examining the appeal records, the Tribunal found that the issue was settled by various decisions of the Supreme Court, High Courts, and Tribunals. The Tribunal referred to a Supreme Court decision that clarified the power of the appellate authority to remand matters for fresh decision. The Tribunal also noted that the power to remand was inherent in the provision, despite the amendment. Further, the Tribunal highlighted that passing remarks in a different Supreme Court case did not override the earlier interpretation of the provision.4. Final Decision:Based on the precedents and interpretations provided by various courts and tribunals, the Tribunal concluded that the Commissioner (Appeals) retained the power to remand matters back to the original adjudicating authority even after the amendment of Section 35A (3). Consequently, the Tribunal found no merit in the appeal filed by the Revenue and dismissed it. The Cross Objection was also disposed of accordingly.This detailed analysis of the judgment highlights the issues of delay condonation, the validity of remand post-amendment, and the interpretation of Section 35A (3) of the Central Excise Act, 1944, leading to a comprehensive understanding of the Tribunal's decision.