2008 (10) TMI 368 - AT - Central Excise

Power to remand a case - Commissioner (Appeals) - Commissioner (Appeals) has been divested of his power to remand a matter to the lower authority - Held that - No contrary order on this issue from any Larger Bench of the Hon ble Supreme Court - except for these Appeals filed by the Commissioner of Central Excise, Kolkata-III, none of the other Commissioners in Kolkata or outside Kolkata in the Eastern Zone in the jurisdiction of this Bench have questioned the power of the Commissioner (Appeals) to remand cases - Appeal is rejected

Summary

Issues:
Whether the Commissioner (Appeals) has the power to remand a case to the lower Authority.

Analysis:
The Appeals were filed by Commissioner of Central Excise, Kolkata-III, raising the common issue of whether the Commissioner (Appeals) has the power to remand a case to the lower Authority. The Department argued that the Commissioner (Appeals) lost this power due to an amendment in Section 35A(3) of the Central Excise Act, 1944. They referenced a decision by the Punjab and Haryana High Court to support their stance. On the other hand, the Respondents, M/s. Saregama India Ltd., cited a decision by the Gujarat High Court and a Supreme Court decision to argue that the Commissioner (Appeals) still retains the power to remand cases. They highlighted that the Department had accepted the Gujarat High Court's decision and not appealed it. The Tribunal noted that the Gujarat High Court's decision had been consistently followed by them, with no appeals filed against it. They found no contrary decision from the jurisdictional Calcutta High Court and observed that the current law post-amendment aligns with the interpretation in the earlier Supreme Court decision. Given the lack of challenges to the power of the Commissioner (Appeals) from other Commissioners in the region, the Tribunal concluded that the Appeals by the Commissioner of Central Excise, Kolkata-III had no merit and rejected all twelve Departmental Appeals.

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