2013 (1) TMI 721 - AT - Central Excise

Scope of Tribunal's order - Difference of opinion - Majority order - whether the order of this Tribunal 2000 (11) TMI 553 - CEGAT, NEW DELHI is to be treated as an order remanding the matter to appropriate adjudicating authority or the same has to be treated as the one allowing appeal in its totality without any further direction to the lower authorities for re-deciding the issue - Held that - Tribunal had specifically stated that the Assistant Commissioner was not competent to adjudicate the matter since the demand of the duty is of ₹ 52 lakhs. The said order does not say whether they are setting aside the impugned order but it does say that the matter could be readjudicated by the competent adjudicating authority. It is also to be noted that the reasoning of the Tribunal was only to hold Assistant Commissioner as not competent to adjudicate the matter, hence the order which has been passed is presumed as non est order - sentence would indicate that the Tribunal, in fact, indicated that the matter should be heard by the competent authority. Again, the last sentence of the said paragraph also specifically says that the appeal is disposed of. It would indicate that the appeal was not allowed or was not rejected. It would also mean that the Tribunal in the Final Order No. 513/2000-C, dated 15-11-2000 had intended that the competent authority should take up the matter for disposal. I am fortified in my view by the decision of the Larger Bench of the Tribunal in the case of Wilson and Company (2000 (5) TMI 68 - CEGAT, COURT NO. I, NEW DELHI) - Decided against assessee.

Summary

Issues Involved:
1. Competence of the Assistant Commissioner in adjudicating the demand of duty.
2. Interpretation of the Tribunal's order dated 15-11-2000.
3. Whether the Tribunal's order amounted to a remand or a final decision.

Detailed Analysis:

1. Competence of the Assistant Commissioner in Adjudicating the Demand of Duty:
The proceedings were initiated against the appellant for clubbing clearances of four manufacturers, resulting in a demand of Rs. 52 lakhs. The Assistant Commissioner adjudicated the matter, which was challenged on the grounds of jurisdiction. The Tribunal's order dated 15-11-2000 highlighted that as per the Board's circular, the Assistant Commissioner was not competent to adjudicate demands exceeding Rs. 50,000, except in cases related to the approval of classification lists and price lists. Since this case did not involve such approvals, the Assistant Commissioner lacked the jurisdiction to adjudicate the demand.

2. Interpretation of the Tribunal's Order Dated 15-11-2000:
The core dispute revolved around whether the Tribunal's order should be interpreted as a remand or a final decision. The appellant contended that the appeal was allowed in its entirety without further directions to the lower authority. Conversely, the Revenue argued that the order should be treated as a remand for re-adjudication by a competent authority.

3. Whether the Tribunal's Order Amounted to a Remand or a Final Decision:
The Tribunal's order stated, "the matter could be adjudicated by the competent adjudicating authority." This phrase was pivotal in determining whether the order was a remand. The Tribunal in the Rajputana Steel Castings case and the Hon'ble Madras High Court in V.K. Palappa Nadar held that an order vacating the impugned order without specific directions for re-adjudication does not constitute a remand. Applying this reasoning, the Tribunal in the present case initially concluded that the order did not amount to a remand.

However, there was a difference of opinion among the members. The Member (Judicial) believed the order did not amount to a remand, while the Member (Technical) opined that it did. The matter was referred to a third Member, who concurred with the Member (Technical), citing the decision of the Larger Bench in Wilson and Company. This decision clarified that non est orders (orders passed without jurisdiction) do not invalidate the show cause notice, and the competent authority can proceed with the matter.

Final Order:
The majority decision held that the Tribunal's order dated 15-11-2000 should be treated as a remand to the competent adjudicating authority. Consequently, the Commissioner was correct in re-adjudicating the matter. The appeal was not allowed on the jurisdictional ground and required disposal on merits.