2011 (8) TMI 407 - AT - Central Excise

Whether the Commissioner (Appeals) has powers to remand the matter to the original adjudicating authority after the amendment of Section 35A(3) of Central Excise Act, 1944 - In the decision of the Hon ble Gujarat High Court in the case of Medico Labs 2004 -TMI - 47062 - HIGH COURT OF GUJARAT AT AHMEDABAD , held that Commissioner has the powers to remand - Reject the appeal of revenue.

Summary

Issues:
Whether the Commissioner (Appeals) has powers to remand the matter to the original adjudicating authority after the amendment of Section 35A(3) of Central Excise Act, 1944.

Analysis:
The judgment before the Appellate Tribunal CESTAT, Ahmedabad, involved the issue of whether the Commissioner (Appeals) possesses the authority to remand cases to the original adjudicating authority post the amendment of Section 35A(3) of the Central Excise Act, 1944. The learned DR argued that various decisions of the Tribunal had established that the Commissioner (Appeals) lacks the power to remand, citing cases like Devi Dayal Aluminium Industries (P) Ltd. vs. CCE Ghaziabad and MIL India Ltd. vs. CCE Noida. Additionally, the DR referred to a Board letter dated 18.02.10 to support this stance. The DR contended that based on these precedents and the Supreme Court's ruling in MIL India Ltd., it must be concluded that the Commissioner (Appeals) does not possess the authority to remand under the amended Section 35A(3) of the Act.

On the other hand, the learned advocate argued that several decisions of the Ahmedabad Bench of the Tribunal had upheld the Commissioner's power to remand. The advocate highlighted the Gujarat High Court's decision in the case of Medico Labs as a precedent followed by the Ahmedabad Bench. Moreover, the advocate pointed out that other benches, such as Kolkata and Chennai, had also supported the view that the Commissioner has the power to remand, citing cases like Panihaty Castings Pvt. Ltd. and CCE Pondicherry vs. Neycer India Ltd. In light of these precedents and the consistent application of the Gujarat High Court's decision across various benches, the Tribunal concluded that the matters should be remanded to the original adjudicating authority, thereby upholding the view taken by the Commissioner (Appeals) and rejecting the appeals filed by the Revenue.

In conclusion, the Appellate Tribunal CESTAT, Ahmedabad, after considering the arguments presented by both parties and the precedents cited, held that the Commissioner (Appeals) does have the authority to remand cases to the original adjudicating authority following the amendment of Section 35A(3) of the Central Excise Act, 1944. The Tribunal's decision was based on the consistent application of this principle across various benches and the reliance on relevant court decisions, ultimately leading to the rejection of the Revenue's appeals in the cases under consideration.