TaxTMI 
TaxTMI 
2013 (1) TMI 721
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....On hearing both sides with reference to the jurisdiction point we felt that the matter itself can be disposed off on the limited issue. We find, that Board has issued a circular prescribing the monetary limit of the Assistant Commissioner in adjudicating the cases relating to demand under Section 11A of the Act. Accordingly, the Assistant Commissioner was not competent to adjudicate the matter raising the demand of duty more than Rs. 50,000, except in cases relating to approval of classification list and price list. We are convinced that this case is not of either approval of classification list or of price list. Under these circumstances, the Assistant Commissioner was not competent to adjudicate the matter since the demand of duty in this case is of Rs. 52 lakhs. In view of this monetary limit, the matter could be adjudicated by the competent adjudicating authority. With these observations, this appeal is disposed off." 2. The present impugned order stand passed by Commissioner (Appeals) by treating the above order of the Tribunal as remand order. The entire dispute in the present appeal revolves around the above order of the Tribunal. As per Revenue, the same has to be t....
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.....L.T. 14 (Mad.). The order passed by the Central Board of Revenue vacating the impugned order, without prejudice to the merits of the case, was held as not being a remand order. It was observed in para 6 of the said judgment that Section 35 of Central Excise Act is a self-contained set of rules. The appellate authority has got powers to confirm, alter, annul or remand the matter. However, the order passed in appeal shall be final subject to the power of revision. The appellate tribunal has been given powers of the widest character, which will include the power of remand. Finality is also attached to the order of the appellate tribunal. This would clearly show that after disposal of the matter by the appellate tribunal, jurisdiction can be revived in the original tribunal only if there are specific direction in the Appellate order to that effect. If the Appellate order merely annuls the original order without containing any other direction, there shall be no power in the original authority to ensure de novo proceeding. Accordingly, the Hon'ble High Court observed in para 8 is as under : "8. Taking up the first point we agree with the view of the learned judge that the italic....
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....__________) Sd/- (Archana Wadhwa) Member (Judicial) [Per : B.S.V. Murthy, Member (T)]. - Since I am unable to agree with the order recorded by the ld. Member (Judicial), a separate order is recorded by me. 6. As observed by the ld. Member (Judicial), the entire dispute in the present appeal revolves around the order of the Tribunal dated 15-11-2008 and the dispute is whether the above order is to be treated as remand order or not. 7. Ld. Adv. relies upon the decision of this Tribunal in Rajputana Steel Casting P. Ltd. to support his submission that the order of the Tribunal dated 15-11-2000 was not a remand order. In Rajputana Steel case, the application was disposed of with the observation "I confine myself only to the ground of jurisdiction which was raised before Hon'ble High Court and in view of the aforesaid circular I am of the view that the case should have been adjudicated by the original authority Commissioner/Additional Commissioner. The miscellaneous application filed by the appellant is allowed to the above extent. In V.K. Palappa Nadar case cited by the ld. Adv., the relevant portion was "Having rega....
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....re was no remand, whereas in this case the Tribunal gave liberty to the competent adjudicating authority to adjudicate the matter. Quite often in India "could be done" is used even for activity that can be done afterwards. Quite often it does not mean past tense. It is also pertinent to note that even though appellant had challenged the show cause notice issued by the Commissioner for de novo adjudication, the Hon'ble High Court of Gujarat did not go into merits and instead observed that petitioners have to appear before Commissioner and Commissioner would pass orders in accordance with the law. In fact the appellants were permitted to withdraw the petition filed by them before the Hon'ble Gujarat High Court. 9. The above conclusion is further supported by the decision of a Five Member Bench of this Tribunal in Wilson and Company reported in 2000 (119) E.L.T. 224 (Tri.-LB). In this case the Assistant Commissioner passed an order in a case involving extended period on 29-12-1987 i.e. after the amendment of the law that in such cases decision was to be made only by the Collector of Central Excise with effect from 27-12-1985. After the order was passed by the Assistant Collect....
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.... 462 of the Code of Criminal Procedure, 1973. Para 25. With reference to the view taken by the High Court that the trial was vitiated on account of lack of jurisdiction by the Sessions Court and requiring trial to recommence de novo, reversing the decision of the High Court, Supreme Court observed as under :- "13. It is useful to refer to Section 462 of the Code which says that even proceedings conducted in a wrong sessions division are not liable to be set at naught merely on that ground. However, an exception is provided in that Section that if the Court is satisfied that proceedings conducted erroneously in a wrong sessions division "has in fact occasion a failure of justice'", it is open to the Higher Court to interfere. While it is provided that all the instances enumerated in Section 461 would render the proceedings void, no other proceedings would get vitiated ipso facto merely on the ground that the proceedings were erroneous. The court of appeal or revision has to examine specifically whether such erroneous steps had in fact occasioned failure of justice. Then alone the proceedings linked with such erroneous steps, unless the error is of such a nature that ....
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....e cannot adjudicate the issue. This is not the intention and this would defeat the very purpose of the Section. It is well settled that law cannot be interpreted in such a manner that it is rendered useless. Therefore, remand to original adjudicating authority or the observation that case could be adjudicated by competent authority would mean the first adjudicating authority and not his designation which could vary. Further, I am also supported by the meaning of 'Remand' in the Concise Law Dictionary, 1997 edition, submitted by the ld. Adv. before us, which gives the meaning of "Remand" as "........... to remit or send back a cause to the court from which it was removed, appealed or transfer into another Court, in order that some further action may be taken upon it in the original Court." This meaning also supports my view that by remand a case can be transferred into another Court also thereby meaning that even if original adjudicating authority would be different from the one who had adjudicated the order under challenge. 13. Now I would like to make some observations on facts. In this case, show cause notices were issued on 5-6-1990, 24-10-1990, 11-5-1991 and on 30-9-....
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....ency of the adjudicating authority and correctness of demand of substantial Revenue of more than Rs. 52 lakhs which has already been confirmed at two levels has not even come up for final hearing. Thus on the basis, in the interest of equity, justice and good conscience, it has to be held that the order dated 15-11-2000 was a remand order and not an order which set aside order-in-original leaving no remedy for the Revenue. 14. Therefore, I uphold the impugned order of the Commissioner of Central Excise. Sd/- (B.S.V. Murthy) Member (Technical) DIFFERENCE OF OPINION 15. Whether it has to be held that the order of this Tribunal dated 15-11-2000 is to be treated as remand order and the competent adjudicating authority as per the law at present can adjudicate the case as held by the ld. Member (Technical), or order dated 15-11-2000 of the Tribunal is to be held as not amounting to remand as held by Member (Judicial) and appeal to be allowed on this short ground without going to merits. (Pronounced in the Court on ________________) Sd/- Sd/- (B.S.V. Murthy) (Archana Wadhwa) Member (Technical) Member (Judicial) 16....
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....reated as an order remanding the matter to appropriate adjudicating authority as held by ld. Member (Technical) or the same has to be treated as the one allowing appeal in its totality without any further direction to the lower authorities for re-deciding the issue as held by ld. Member (Judicial)." 22. Heard both sides and perused the records. 23. Ld. Counsel appearing on behalf of the appellant would submit that the issue involved in this case lies in a narrow compass and to buttress his point, he would take me through the Final Order of this Tribunal No. 513/2000-C, dated 15-11-2000 [2001 (130) E.L.T. 202 (Tri.)] and reads Para 2 of the order. 24. After reading the said paragraph, it is his submission that this paragraph does not indicate that the Tribunal has remanded the matter back to any authority and reading into this paragraph that there was remand, the ld. Commissioner has taken up the matter for disposal for readjudicating the demand against the appellant. It is his submission that if the Revenue is aggrieved by such an order, should have filed an appeal instead of getting the matter re-adjudicated by the Commissioner. He would rely upon the decis....
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....ppeal is disposed off." 27. It can be seen from the above reproduced paragraph that the Tribunal had specifically stated that the Assistant Commissioner was not competent to adjudicate the matter since the demand of the duty is of Rs. 52 lakhs. The said order does not say whether they are setting aside the impugned order but it does say that the matter could be readjudicated by the competent adjudicating authority. It is also to be noted that the reasoning of the Tribunal was only to hold Assistant Commissioner as not competent to adjudicate the matter, hence the order which has been passed is presumed as non est order. Likewise, the last two sentences of above paragraph will clearly indicate that the Bench, had, in fact, impliedly stated that the competent authority, who can adjudicate the matter of monetary limits of Rs. 52 lakhs, is required to do so. In my view, the sentence would indicate that the Tribunal, in fact, indicated that the matter should be heard by the competent authority. Again, the last sentence of the said paragraph also specifically says that the appeal is disposed of. It would indicate that the appeal was not allowed or was not rejected. It would also ....