TaxTMI 
TaxTMI 
2015 (1) TMI 849
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.... 2. Brief facts of the case are that the merchant exporter M/s Punagiri Chemopharma Pvt. Ltd. filed an application in form Annexure-19 for proof of export in 7 cases pertaining to exports made during the period July 2010 to November 2010. The Deputy Commissioner, Central Excise, Kuria Division rejected the proof of export and ordered recovery of duty amounting to Rs. 4471024/-. The applicant department filed appeal before Commissioner (Appeals) on the ground that the impugned order is beyond the prescribed monetary limits for adjudication by the Deputy Commissioner. It was prayed in the Revenue's appeal that the impugned order may be set aside and the matter may be remanded to the original authority for passing a fresh order. 2.1 ....
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....wer of Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. 3.2 Board vide its circular No.275/34/2006-0X.8A dated 18.2.2010 has clearly directed that in view of the Hon'ble Supreme Court Judgment in the case of MIL India Ltd. and the judgment of Hon'ble High Court of Punjab and Haryana in the case of M/s Enkay (India) Rubber Co. Pvt. Ltd. Suitable instructions have been issued to the Commissioner (Appeals) to follow the said judgments strictly. It has been categorically stated in view of the Court judgments that the powers of the remand had been taken away but Commissioner (A) continues to exercise the power of adjudicating authority in the matter of assessment and he can add or subtract....
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....ated 18.02.2010 for reasons better known to him. He ignored the new shape of Section 35A(3) after said amendment of 2001, which is clearly mentioned in paragraph 2 of the above said CBEC instruction. 4.2 It is clear & evident from provision of Section 35A(3) that the Commissioner (Appeals) can confirm, modify or annul the decision appeal against. And, that is what he did in the impugned order-in-appeal, when he stated as "In view of the above, the impugned order is set aside and the appeals are allowed. 4.3 The Commissioner (Appeals) in the impugned order-in-appeal did not refer the matter back to the adjudicating authority for fresh consideration. Rather stated there as "In view of the above, the impugned order is set aside and the a....
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....or export without payment of duty of basic organic and inorganic chemicals as mentioned in RCMC No. CHEM/ME/R-5/2010-11/13055 issued in their favour by CHEMEXIL, as per Rule 19 of the Central Excise Rules, 2002 read with Notification No.42/2001-CE (Ni) dated 26.06.2001. 4.5 On completion of export the Respondent/merchant exporter had submitted all relevant documents of proof of export before the jurisdictional authority, Deputy Commissioner Mumbai-II which were not accepted. And vide 010 No.02/Punagri/2011-12 dated 28.07.2011 Deputy Commissioner Mumbai-II had ordered recovery of duty to the tune of Rs. 44,71,024/- from them. Which was subsequently set aside by .Commissioner (Appeals)- vide OIA- No.US/9 10/M-II/2012 dated 17.01.12. 5. ....
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....o the duty involved of Rs. 5.00 lakhs where finer and penalty is to be imposed. He further held that the adjudicating authority did not grant a personal hearing in the matter and passed order without observing principle of natural justice. As such he allowed both the appeals. Now the applicant department has filed these revision applications on grounds mentioned in para (3) above. 8. Government observes that this revision application has been filed by the applicant department mainly on the ground that the Commissioner (Appeals) has not decided the issue on merits and also that Commissioner (Appeals) by allowing the appeal filed by the department has in fact remanded the case back to original authority which is not permitted in terms of S....