2008 (10) TMI 460 - AT - Central Excise

Summary

Issues involved: Remand of matter by Commissioner (Appeals) u/s 35 of Central Excise Act, incorrect calculation of duty, setting aside of Commissioner (Appeals) order, execution of bank guarantee.

Remand of matter by Commissioner (Appeals) u/s 35 of Central Excise Act:
The Appellate Tribunal observed that the Commissioner (Appeals) had remanded the matter back to the original adjudicating authority for a fresh order, which was deemed unsustainable in light of the amendment to Section 35 of the Central Excise Act, 1944. Citing the Supreme Court decision in the case of MIL India Ltd., it was established that such remand actions were not permissible. Consequently, the impugned order was set aside, and the matter was remitted back to the Commissioner (Appeals) to reconsider the issue and issue a new order based on the available records.

Incorrect calculation of duty:
The appellant contended that the Commissioner (Appeals) order should be set aside as it did not provide the correct calculation necessary for determining the differential duty. It was argued that the order failed to address the issue on its merits. In response, the ld. SDR argued that the remand by the Commissioner (Appeals) was unsustainable due to the amendment of Section 35 of the Central Excise Act and the Supreme Court's decision in the case of MIL India Ltd. Given the narrow scope of the issue, the appeals were taken up after dismissing the stay application.

Setting aside of Commissioner (Appeals) order:
Upon reviewing the impugned order, it was noted that the Commissioner (Appeals) had remanded the matter back to the adjudicating authority for a fresh order. However, based on legal precedents, this remand action was found to be unsustainable. Therefore, the impugned order in both appeals was set aside, and the Commissioner (Appeals) was instructed to reconsider the issue and issue a new order based on the available records.

Execution of bank guarantee:
The appellant's counsel raised concerns about the lower authorities' insistence on the execution of a bank guarantee. To address this, a time frame of three months was set for the Commissioner (Appeals) to dispose of the matter from the date of receipt of the order. Subsequently, both appeals were disposed of accordingly, providing clarity on the execution of the bank guarantee within the specified timeframe.