2008 (6) TMI 423 - AT - Central Excise

Summary

Issues: Revenue's appeal against remand order by Commissioner (Appeals) under amended Section 35A of Central Excise Act, 1944.

The judgment by the Appellate Tribunal CESTAT, Mumbai, involved the Revenue appealing against the remand order by the Commissioner (Appeals) after the amendment of provisions of Section 35A of the Central Excise Act, 1944. The Revenue contended that the Commissioner (Appeals) should have decided the issue on merits instead of remanding it back to the adjudicating authority. The Ld. SDR representing the Revenue relied on the decision of the Hon'ble Supreme Court in the case of MIL India Ltd. v. CCE, Noida, where it was held that the power of remand by the Commissioner (Appeals) had been withdrawn by amending Section 35A. The Tribunal found merit in the submissions made by the Ld. SDR, quoting the Supreme Court's decision that the Commissioner (Appeals) continues to exercise the powers of the adjudicating authority in matters of assessment. Therefore, the impugned order remanding the matter back to the adjudicating authority was deemed incorrect and unsustainable. The Tribunal decided to remand the matter back to the Commissioner (Appeals) while keeping all issues open for consideration. The appeal was allowed by way of remand, with directions for the Commissioner (Appeals) to grant a personal hearing to both sides before reaching any conclusion.