2009 (6) TMI 716 - AT - Customs

Summary

Issues involved:
1. Failure of the Commissioner (Appeals) to dispose of the appeal on merits.
2. Interpretation of the powers of the Commissioner (Appeals) post-amendment to relevant sections.
3. Correct procedure to be followed by the Commissioner (Appeals) after setting aside lower authorities' orders.

Analysis:
1. The judgment addresses the issue of the failure of the Commissioner (Appeals) to dispose of the appeal on merits. The Tribunal noted that although the impugned order was challenged on various grounds, the appeal was disposed of by referring to only one ground. It was highlighted that the Commissioner (Appeals) did not follow the correct procedure by remanding the matter instead of examining and adjudicating it on its merits. The Tribunal emphasized that the Commissioner (Appeals) should have proceeded to re-examine and re-adjudicate the matter himself after setting aside the lower authorities' order.

2. The Tribunal delved into the interpretation of the powers of the Commissioner (Appeals) post-amendment to relevant sections, specifically Section 128A of the Customs Act, 1962, and Section 35A of the Central Excise Act, 1944. It was clarified that the law explicitly states that the Commissioner (Appeals) does not have the authority to remand the matter back to the adjudicating authority for fresh consideration. The judgment referenced decisions from the High Court and the Apex Court to establish that the Commissioner (Appeals) must exercise the powers of the adjudicating authority in matters of assessment.

3. The judgment outlined the correct procedure to be followed by the Commissioner (Appeals) after setting aside the lower authorities' orders. It emphasized that the Commissioner (Appeals) should not direct re-examination and re-adjudication of the matter by the lower authority but should conduct the re-examination and re-adjudication himself. The Tribunal concluded that in the case at hand, the impugned order was liable to be set aside, and the matter remanded to the Commissioner (Appeals) to comply with the legal obligations and pass an appropriate order on merit in accordance with the law. The Tribunal also directed that the party should be heard before passing such an order.

In summary, the judgment clarified the powers and responsibilities of the Commissioner (Appeals) in disposing of appeals on merits, especially in light of the amendments to relevant sections. It emphasized the need for the Commissioner (Appeals) to conduct re-examination and re-adjudication personally rather than remanding the matter to the lower authority.