2013 (2) TMI 164 - AT - Central Excise

Power of Commissioner(Appeal) - Power to remand back the case - Held that - The Commissioner (Appeals) in his order has clearly set aside the order of the adjudicating authority. Therefore, it is not a mere remand without deciding the issue on merits. Thereafter, he has given one more opportunity to the department to consider the matter in terms of the guidelines he has stated, for reconsideration of the matter in terms of Board s circulars issued in this regard and also judgments on the issue. Therefore, the Commissioner (Appeals) order cannot be said to be an order of remand. Decision against revenue

Summary

Issues:
1. Commissioner (Appeals) remanding the case back to Assistant Commissioner.
2. Power of Commissioner (Appeals) to remand the case.

Issue 1: Commissioner (Appeals) remanding the case back to Assistant Commissioner

The appeal was filed by the Revenue against the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals), Pune-I. The Commissioner (Appeals) had set aside the order-in-original passed by the Assistant Commissioner and remanded the case back to the Assistant Commissioner for reconsideration based on guidelines provided in the impugned order. The Revenue contested this action, arguing that the Commissioner (Appeals) did not have the power to remand the case.

Issue 2: Power of Commissioner (Appeals) to remand the case

The learned advocate for the respondent pointed out that in a previous case with similar circumstances, the Revenue's appeal had been dismissed. The Commissioner (Appeals) in the present case set aside the order of the adjudicating authority and provided an opportunity for the department to reconsider the matter in accordance with guidelines and relevant circulars. The Tribunal had previously dismissed the Revenue's appeal in a similar case, and based on that decision, the current appeal was also dismissed. It was concluded that the Commissioner (Appeals) order was not merely a remand but a decision made after considering the merits of the case and providing clear directions for reconsideration.

In summary, the judgment addressed the issue of the Commissioner (Appeals) remanding a case back to the Assistant Commissioner and the power of the Commissioner (Appeals) to do so. The Tribunal found that the Commissioner (Appeals) had the authority to set aside the order of the adjudicating authority and provide directions for reconsideration based on guidelines and relevant legal provisions. The Tribunal also considered previous decisions where similar appeals by the Revenue had been dismissed, leading to the dismissal of the current appeal as well.