2016 (9) TMI 466

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....ts made from related overseas firm. While remanding the case, the Commissioner (Appeals) has also directed the appellant to pay EDD at the equivalent of 1% of the invoice value and also directed the AC (SVB) to take into consideration the factual circumstances to conclude whether there is a condition of sale and nexus with the imported goods.  Therefore, the appellant's appeal is limited only to the impugned order relating to 1% of EDD. 2.  Ld. Advocate reiterated the grounds of appeal and submits that they have preferred appeal against the OIO and when the order is set aside and remanded denovo the Commissioner (Appeals) has no jurisdiction to direct the appellant to pay 1% EDD of the invoice value till the issue of denovo o....

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....rect the lower authority to put pre-condition to decide the case in de novo. In this regard, we find that the Hon'ble High Court Order in the case of Terumo Penpol Ltd. (supra) and in the case of National Oxygen Ltd., (supra) on identical issue wherein Hon'ble High Court set aside the portion of the Commissioner (Appeals) order directing 1% EDD. The relevant portion of the Hon'ble High Court order in the case of Terumo Penpol Ltd. (supra) is reproduced below:- "4. This Court although finds some merit in the argument advanced by the learned counsel for the respondents that there is an effective alternative remedy available, as provided under Section 129A of the Customs Act, the ultimate conclusion reached by the appellate Autho....

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....the year 1965 or 1994. After reaching such a conclusion, the only power that could be exercised by the Tribunal is, to refer the case back to the authority, which passed such decision or order with such direction as the appellate Tribunal may chink fit for afresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. Rightly, in this case, certain directions were given by the Tribunal to the adjudicating authority how to proceed with the de novo adjudication as extracted in paragraph No.3 above. But the imposition of pre-condition for setting aside the order i.e., directing the appellant to deposit 50 per cent of the differential value on or before particular date is, in our view, not in accordance wit....