2003 (8) TMI 327 - AT - Central Excise

Summary

Issues:
1. Challenge against the order passed by the Commissioner (Appeals) dated 4-2-93.
2. Validity of Order-in-Original No. 3/98.
3. Jurisdiction of the Commissioner (Appeals) to pass the impugned order.
4. Doctrine of merger in the context of the Final Order dated 26-7-2000.
5. Jurisdiction of the Commissioner (Appeals) to remand the matter.

Issue 1:
The appellant challenged the order passed by the Commissioner (Appeals) dated 4-2-93, contending that the Order-in-Original No. 3/98 had attained finality under Final Order No. 605/2000-A passed by the Tribunal. The appellant argued that no challenge against the Order-in-Original could be entertained subsequently by the Commissioner (Appeals), citing the Larger Bench decision in CCE, New Delhi v. L.M.L. Ltd. The impugned order was issued by the Commissioner (Appeals) remanding the matter for fresh consideration by the Deputy Commissioner, which the appellant claimed was without jurisdiction under the amended Section 35A of the Central Excise Act.

Issue 2:
The appellants were involved in the manufacture of Pan Masala and faced disallowance of certain deductions under a show cause notice dated 12-1-98. The Assistant Commissioner upheld the proposals under Order-in-Original No. 3/98. The appellant appealed to the Commissioner (Appeals), who declined to interfere with the Order-in-Original. Subsequently, the Tribunal set aside the impugned order and allowed the appeal. The Commissioner (Appeals) then passed the impugned Order-in-Appeal, considering the validity of an Order-in-Original that had already been set aside by the Tribunal. The appellant argued that the impugned order was non est in the eye of the law as it had already merged in the Final Order dated 26-7-2000.

Issue 3:
The jurisdiction of the Commissioner (Appeals) to pass the impugned order was challenged by the appellant, asserting that the Order-in-Original had already been decided by the Tribunal in Final Order No. 605/2000-A. The appellant contended that the Commissioner (Appeals) had no jurisdiction to consider an Order-in-Original that had been set aside by the Tribunal earlier.

Issue 4:
The doctrine of merger was discussed in the context of the Final Order dated 26-7-2000. The Tribunal held that since the issue involved in the Final Order related to the quantum of duty liability of the assessee, the Commissioner (Appeals) had no jurisdiction to pass the impugned order. The Tribunal emphasized that once the quantum of duty due from the assessee was finally decided in the Final Order, it was not open to the Revenue to file an appeal from the Order-in-Original for a different deduction claimed by the assessee affecting the duty liability.

Issue 5:
Regarding the jurisdiction of the Commissioner (Appeals) to remand the matter for fresh consideration, the Tribunal referred to the Larger Bench decision in CCE, Bhubaneswar v. Oripol Industries. It was held that the Commissioner (Appeals) had no jurisdiction to remand the matter for fresh consideration by the original authority. Consequently, the Tribunal set aside the impugned order and allowed the appeal, affirming that the Commissioner (Appeals) had overstepped his jurisdiction in light of the Final Order passed by the Tribunal.