2008 (10) TMI 552 - AT - Central Excise

Summary

Issues:
1. Power of remand by Commissioner (Appeals) post-amendment of Section 128A of Central Excise Act.

Analysis:
The appeal before the Appellate Tribunal CESTAT, New Delhi involved a challenge by the revenue against an order passed by the Commissioner (Appeals) which set aside an adjudication order and remanded the matter back to the adjudicating authority for reconsideration. The crux of the issue was whether the Commissioner (Appeals) retained the power of remand post-amendment of Section 128A of the Central Excise Act with effect from 11-5-01 under the Finance Bill, 2001. The revenue contended that the amendment had withdrawn the power of remand by the Commissioner (Appeals), rendering the impugned order unsustainable.

Upon analysis, the Tribunal noted that Section 128A had indeed been amended with effect from 11-5-01. The Tribunal referred to a decision by the Hon'ble Punjab & Haryana High Court in the case of CCE v. B.C. Kataria, where it was held that post-amendment of Section 128A of the Customs Act, the Commissioner no longer possessed the authority to remand further. Additionally, the Tribunal cited a decision by the Hon'ble Supreme Court in the case of MIL India Ltd. v. CCE, which also acknowledged the withdrawal of the power to remand by the Commissioner (Appeals) post-amendment. Relying on these precedents, the Tribunal found merit in the revenue's contention and set aside the impugned order, remanding the matter back to the Commissioner (Appeals) for a decision on merit after providing an opportunity to the respondent. The appeal was disposed of through remand, in line with the legal principles established by the aforementioned judgments.

In conclusion, the Tribunal's decision clarified the impact of the amendment to Section 128A of the Central Excise Act on the power of remand by the Commissioner (Appeals), aligning with the interpretations provided by the Hon'ble Supreme Court and the Hon'ble Punjab & Haryana High Court. The judgment underscored the legal position that post-amendment, the Commissioner (Appeals) no longer possessed the authority to remand matters, thereby necessitating a reconsideration of the appeal on merit in compliance with the prevailing legal framework.