2007 (11) TMI 494 - AT - Central Excise

Summary

Issues involved:
1. Interpretation of the power of remand of Commissioner (Appeals) after the amendment of the proviso to Section 35A of Central Excise Act.
2. Applicability of previous judicial decisions on the power of remand by Commissioner (Appeals).
3. Determination of the authority to decide on excisability or dutiability in the hierarchy of tribunals.

Analysis:

1. The appeals were filed by the revenue against the impugned order remanding the matter to the adjudicating authority by the Commissioner (Appeals) post the amendment to Section 35A of the Central Excise Act. The revenue contended that the power of remand by the Commissioner (Appeals) was withdrawn after the said amendment, rendering the impugned order unsustainable.

2. The revenue relied on the decisions of the Hon'ble Supreme Court and the High Court of Punjab & Haryana in specific cases to support their argument that the Commissioner (Appeals) no longer possessed the authority to remand matters post the amendment. The contention was based on the interpretation of the amended provisions of the Central Excise Act, emphasizing the limitation on the power of remand by the Commissioner (Appeals).

3. The respondents argued that post-amendment, the Commissioner (Appeals) retained the power to pass appropriate orders, including remand, as deemed fit. The discussion revolved around the Commissioner's authority to modify decisions, which encompassed the discretion to remand a case for further consideration.

4. The Tribunal referred to the decision of the Hon'ble Supreme Court in a specific case to clarify the hierarchy of tribunals in deciding excisability or dutiability matters. The Tribunal highlighted that the Tribunal held the highest authority to determine factual aspects, irrespective of the Commissioner (Appeals)'s decision. The discussion emphasized the non-binding nature of the Commissioner (Appeals)'s decision on the Tribunal in matters of excisability or dutiability.

5. Considering the precedents set by the Hon'ble Punjab & Haryana High Court, the Tribunal concluded that post the amendment to Section 35A, the Commissioner had no authority to remand cases. Therefore, the impugned orders were set aside, directing the Commissioner (Appeals) to decide the appeals on their merits in accordance with the law. The appeals were allowed based on the aforementioned analysis and conclusions.