2013 (4) TMI 25

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....2003 and 18-5-2004 had demanded differential amounts of cess leviable under Section 15 of the Oil Industry (Development) Act, 1974 on crude oil cleared by the respondent in tanker vessels to the Visakha Refinery of M/s. Hindustan Pertroleum Corporation Ltd. (HPCL) during the periods June 2002 to August 2002, September 2002 to March 2003 and April 2003 to August 2003 respectively. The show-cause notices had also demanded interest on cess @ 24% p.a. under the relevant provisions of the Central Excise Rules and had also proposed penalties on the respondent under Rule 26 of the Central Excise Rules. The demands and other proposals were contested by the respondent. In adjudication of the dispute, the original authorities held that the respondent....

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....s, the learned Superintendent (AR) also submitted that the learned Commissioner (Appeals) did not have the power of remand and for this reason also his order was liable to be set aside. In this connection, reference was made to the Hon'ble Supreme Court's judgment in MIL India Ltd. v. CCE, Noida [2007 (210) E.L.T. 188 (S.C.)]. 4. The learned counsel for the respondent, at the outset, submitted that, while excess quantity of crude oil as per Intake certificates vis-à-vis Bill of Lading was considered by the Department for recovery of differential cess, no case of shortage of crude oil quantity as per Intake certificates vis-à-vis Bill of Lading quantity was taken into account. The counsel pointed out that there were a few case....

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....as follows :- Section 15 : (1) There shall be levied and collected, as a cess for the purposes of this Act, on every item specified in column 2 of the schedule, which is produced in India (including the continental shelf thereof) and - (a) removed to a refinery or factory; or (b) ... ... ... (2) Every duty of excise leviable under sub-section (1) on any item shall be payable by the person by whom such item is produced and in the case of crude oil, the duty of excise shall be collected on the quantity received in a refinery, (3) The duties of excise under sub-section (1) on the items specified in the Schedule shall be in addition to any cess or duty leviable on those items under any other law for the time being in force. (4) The p....

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....ause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. .... ...." The lower appellate authority did not have the power of remand and hence ought to have disposed of the assessee's appeals on merits after taking a conclusive view on the substantive issue. As rightly submitted by the learned Superintendent (AR), the impugned order is liable to be set aside on this very ground. 7. The learned counsel for the respondent has produced a copy of one of the memoranda of appeals filed with the lower appellate autho....