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2010 (10) TMI 475 - AT - Central ExcisePower to remand the case - Does the Commissioner (Appeals) have the power to remand the case to the adjudicating authority after amendment of Section 35A(3) of the Central Excise Act, 1944 by the Finance Act, 2001 w.e.f. 11-5-2001 - in the case of MIL India Ltd. v CCE, Noida 2007 -TMI - 1196 - SUPREME COURT OF INDIA , the Apex Court has noted in para-4 of its judgment that the power of remand by Commissioner (Appeals) has been taken away by amendment to Section 35A w.e.f. 11-5-2001 under the Finance Bill, 2001 - Thus, agree with the Revenue that the Commissioner (Appeals) has no power to remand the case back to the original authority w.e.f. 11-5-2001.
Issues:
- Power of Commissioner (Appeals) to remand the case after amendment of Section 35A(3) of the Central Excise Act, 1944 by the Finance Act, 2001. Analysis: The judgment delves into the issue of whether the Commissioner (Appeals) retains the power to remand a case to the adjudicating authority post the amendment of Section 35A(3) of the Central Excise Act, 1944 by the Finance Act, 2001. The Tribunal refers to various precedents to establish the legislative intent behind the amendment. It highlights the decision in Commissioner v. Enkay (India) Rubber Co. Pvt. Ltd., where the Punjab High Court concluded that the power of remand of the Commissioner (Appeals) was expressly taken away by the Finance Act, 2001. The Tribunal also mentions the case of CCE, Jalandhar v. B.C. Kataria, where the High Court followed the Enkay Rubber Co. case. The judgment emphasizes the distinction made regarding the power of remand before and after the amendment, citing the Gujarat High Court's decision in CCE, Ahmedabad v. Medico Labs. The Tribunal ultimately aligns with the view that the Commissioner (Appeals) no longer possesses the authority to remand cases post the amendment. Moreover, the judgment discusses the Supreme Court's stance on the issue, referencing the case of MIL India Ltd. v CCE, Noida, where the Apex Court acknowledged the removal of the power of remand by Commissioner (Appeals) through the amendment to Section 35A. The Tribunal notes the distinction made by a Single Member Bench in Bacha Motors (P) Ltd. v. CST, Ahmedabad, regarding the applicability of the MIL India decision. The judgment also highlights a recent decision by the Division Bench of the Tribunal, Commissioner of Customs (Import), Mumbai v. Clestra Modular System Pvt. Ltd., which followed the MIL India ruling. The Tribunal concurs with the Revenue that the Commissioner (Appeals) lacks the authority to remand cases post the specified amendment date. In conclusion, the Tribunal allows the appeals by way of remand, emphasizing the requirement for the assessees to provide missing particulars of cenvat documents and material evidence. The judgment sets aside the impugned order and remits the case to the adjudicating authority for a fresh decision, ensuring a reasonable opportunity of hearing for the assessee. It also directs the original authority to verify the usage of services for which credit is claimed in the manufacture of final products/output service.
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