2013 (1) TMI 198 - AT - Central Excise

Remand back the matter back for re-adjudication Power of Commissioner (Appeals) u/s 35A Held that - Section 35A(3), as amended, confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be to remand the matter for fresh adjudication. For example, if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to produce evidence in support of his case, in such event while setting aside the order-in-original only just and fair order would be to remand the matter back for fresh adjudication after giving due hearing to the assessee. Thus, power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944. In favour of assessee

Summary

Issues:
Department's appeal against Order-in-appeal remanding the matter back for readjudication - Jurisdiction of Commissioner (Appeals) to remand post-amendment of Section 35A of the Central Excise Act, 1944.

Analysis:
The appeal involved a challenge to the Order-in-appeal remanding the matter back for readjudication. The main issue raised was the jurisdiction of the Commissioner (Appeals) to remand the matter after the amendment of Section 35A of the Central Excise Act, 1944. The department contended that the Commissioner (Appeals) lacked the authority to remand the case back to the original adjudicating authority following the amendment. The department's argument was based on the premise that the power to remand had been withdrawn from the Commissioner (Appeals) post-amendment. Reference was made to the pre-amended Section 35A which explicitly granted the power to remand, indicating a legislative intent to withdraw this power. The department relied on a Supreme Court judgment to support its contention.

The Tribunal examined the relevant provisions of the Customs Act, 1962 and the Excise Act, along with the judgment cited by both parties. The Tribunal highlighted the similarity between Section 128A(2) of the Customs Act and Section 35A(3) of the Excise Act concerning the powers of the Commissioner (Appeals). A Supreme Court decision in a related matter clarified that the power to remand a case for fresh decision was inherent in these provisions. The Tribunal emphasized that the appellate authority had the authority to set aside the decision under appeal and remand the matter for a fresh decision.

Regarding the Supreme Court judgment cited by the department, the Tribunal noted that it pertained to a different issue and merely made a passing remark on the scope of the Commissioner (Appeals)' powers. The Tribunal emphasized that this observation did not supersede the findings of the Supreme Court in a previous case, which established the authority of the Commissioner (Appeals) to remand cases. Additionally, a judgment by the Gujarat High Court supported the view that the Commissioner (Appeals) retained the power to remand even after the amendment to Section 35A(3).

The Tribunal concluded that the Commissioner (Appeals) indeed possessed the power to remand cases back to the original adjudicating authority, even after the amendment of Section 35A(3). Therefore, the department's appeal was dismissed, affirming the Commissioner (Appeals)' jurisdiction to remand matters for fresh adjudication when deemed necessary.