2012 (6) TMI 796 - AT - Central Excise

Whether the Commissioner (Appeals) has power to remand the matter back to the adjudicating authority for fresh adjudication after the amendment of Sec. 035A of the Central Excise Act, 1944 by virtue of Sec. 128A(2) of the Finance Act, 2001 - HELD THAT - Section 035A( 3) of the Act as amended confers powers on the Commissioner (A) to annual the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be to remand the order for fresh adjudication. Thus, we are of the view that the Commissioner (A) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 035A( 3). Both the sections defined the powers of Commissioner (Appeals) in similar language.

Summary

Issues:
- Jurisdiction of Commissioner (Appeals) to remand a matter back for fresh adjudication after the amendment of Section 35A of the Central Excise Act, 1944.

Detailed Analysis:

1. Issue of Jurisdiction of Commissioner (Appeals) to Remand:
- The department's appeal challenged an Order-in-Appeal remanding the case for fresh decision after considering the assessee's claim for abatement. The department contended that the Commissioner (Appeals) lacked the power to remand the matter post the amendment of Section 35A by the Finance Act, 2001.

2. Contentions of the Department:
- The department argued that the amended Section 35A(3) did not authorize the Commissioner (Appeals) to remand a case back to the adjudicating authority for fresh adjudication. The pre-amended Section explicitly granted this power, indicating the legislative intent to withdraw such authority.

3. Contentions of the Respondent:
- The respondent countered, stating that the power to remand was not eliminated by the amendment. They argued that Section 35A empowered the appellate authority to confirm, modify, or annul the decision appealed against, implying the authority to remand for a fresh decision.

4. Judicial Precedents and Interpretations:
- The Supreme Court's interpretation in the case of UOI vs. Umesh Dhaimode affirmed that the power to remand was inherent in the provision, allowing the appellate authority to set aside the decision under appeal and remand for fresh adjudication.
- Another judgment cited by the department, MIL India Ltd. vs. CCE, Noida, highlighted the amendment withdrawing the power of remand. However, this observation was considered a passing remark and did not supersede the earlier Supreme Court ruling.

5. Analysis and Conclusion:
- The Tribunal analyzed the provisions of the Customs Act and the Excise Act, along with the judicial precedents. It concluded that the Commissioner (Appeals) retained the power to remand a matter even after the amendment of Section 35A(3).
- The judgment in the case of CCE, Ahmedabad vs. Medico Labs further supported the view that the Commissioner (Appeals) could remand cases post-amendment.
- The Tribunal emphasized that in certain circumstances, remanding a case for fresh adjudication was necessary for justice, preventing an unfair advantage to either party and ensuring proper adjudication of demands raised.

6. Final Decision:
- Based on the analysis, the Tribunal dismissed the department's appeal, affirming the Commissioner (Appeals)'s authority to remand matters for fresh adjudication under Section 35A(3) of the Central Excise Act, 1944.