2011 (3) TMI 1180 - AT - Central Excise

Power to remand of Commissioner (Appeals) to the adjudicating authority - Held that - As per Finance Act, 2001 power to remand by Commissioner (Appeals) has been withdrawn with effect from 11.5.2001 - Commissioner (Appeals) have no power to remand the matter to the adjudicating authority with effect from 11.5.2001 See MIL India Ltd. vs. CCE 2007 (3) TMI 8 - SUPREME COURT OF INDIA - set aside the impugned order and remand it back to the Commissioner (Appeals) to decide the issue in accordance with law

Summary

Issues:
Challenge to impugned order based on Commissioner (Appeals) power to remand post 11.5.2001.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Mumbai, involved a challenge by the Revenue regarding the power of the Commissioner (Appeals) to remand matters to the adjudicating authority post 11.5.2001. The Tribunal noted that as per the Finance Act, 2001, the power to remand by the Commissioner (Appeals) had been withdrawn. Citing the case of MIL India Ltd. vs. CCE 2007 (210) ELT 188 (SC), the Tribunal highlighted that the amendment to Section 35A under the Finance Bill, 2001 explicitly removed the power of the Commissioner (Appeals) to remand matters back to the adjudicating authority for fresh consideration. The Tribunal also referred to its own decision in the case of CCE Raigad vs. Shree Hari Chemicals (I) P. Ltd. reported in 2009 (95) RLT 803 (CESTAT-Mum), where it was held that Commissioner (Appeals) had no authority to remand matters post 11.5.2001. Consequently, the Tribunal set aside the impugned order and remanded it back to the Commissioner (Appeals) for a decision in accordance with the law after hearing both sides. The appeal was allowed by way of remand, and the cross objection was disposed of accordingly.