2011 (7) TMI 925 - AT - Central Excise

Whether Commissioner (A) has jurisdiction to remand the matter - Bearing in mind the principle behind the said provisions comprised under Section 114 (e) of the Evidence Act, 1872 and taking into consideration the facts of the case, it has to be presumed that the authorities had exercised their duties and functions in regular course of exercise of those duties and functions in accordance with provisions of law - It is also to be noted that the appeal is essentially on the ground of lack of jurisdiction of the Commissioner (Appeals) to remand the matter it is settled law that the Commissioner (Appeals) has no jurisdiction to remand the matter - Appeal is allowed

Summary

Issues Involved:
1. Jurisdiction of Commissioner (Appeals) to remand the matter.
2. Maintainability of the appeal under Section 35 (B)(2) of the Central Excise Act, 1944.

Issue 1: Jurisdiction of Commissioner (Appeals) to remand the matter:

The appeal stemmed from an order remanding the matter to the original adjudicating authority by the Commissioner (Appeals). The challenge was based on the argument that the Commissioner (Appeals) lacked jurisdiction to remand the matter. The appellant contended that any further adjudication should have been completed by the Commissioner (Appeals) himself. The Tribunal held that it is settled law that the Commissioner (Appeals) does not possess the authority to remand the matter, thus concluding that the order in that regard could not be sustained.

Issue 2: Maintainability of the appeal under Section 35 (B)(2) of the Central Excise Act, 1944:

A preliminary objection was raised regarding the appeal's maintainability due to an amendment under Section 35 (B)(2) of the Central Excise Act, 1944. The objection contended that the appeal, filed after 13.05.2005, required authorization by the Committee of Commissioners, whereas in this case, authorization was issued by only one Commissioner. The Tribunal noted that the amendment mandated authorization by a Committee of Commissioners comprising more than one Commissioner. Despite the absence of a date on the authorization letter, it referred to the impugned order dated 31.03.2005, received by the Department on 20.04.2005, and the appeal filed on 15.07.2005. The Tribunal invoked Section 114 (e) of the Evidence Act, 1872, to presume regular performance of official acts and rejected the objection, emphasizing the need for sufficient material to rebut the presumption. The Tribunal found that the objection lacked merit and upheld the appeal, directing the matter to be considered by the adjudicating authority.

In conclusion, the Tribunal ruled in favor of the appellant on both issues, emphasizing the lack of jurisdiction of the Commissioner (Appeals) to remand the matter and dismissing the objection regarding the appeal's maintainability under Section 35 (B)(2) of the Central Excise Act, 1944. The appeal was allowed, and the matter was directed to be considered by the adjudicating authority.