2013 (3) TMI 303 - AT - Central Excise

Powers of Commissioner to remand - as per the department the amendment of Section 35A(3) as substituted vide Section 128 of the Finance Act, 2001, power of the Commissioner to remand the matter back for fresh adjudication has been taken away - 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 remand of the matter for fresh adjudication. Like if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo 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 and it is apparent that the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3). No merit in the appeal filed by department.

Summary

Issues:
Jurisdiction of Commissioner (Appeals) to remand the matter back for fresh adjudication after the amendment of Section 35A(3) of the Central Excise Act, 1944.

Analysis:
The appeal challenged an order-in-appeal remanding the matter back for re-adjudication based on documents submitted by the appellant. The appellant contended that the Commissioner (Appeals) lacked jurisdiction to remand the matter post the amendment of Section 35A(3) by the Finance Act, 2001. The appellant cited the judgment in MIL India Ltd. v. CCE, Noida to support this argument. However, the respondent argued in favor of the impugned order, referencing the judgment of the Hon'ble Gujarat High Court in CCE, Ahmedabad v. Medico Labs, which held that the Commissioner (Appeals) retains the power to remand even after the amendment. The tribunal considered the provisions of the Customs Act, 1962, and the Excise Act along with the arguments presented.

The tribunal noted that both the erstwhile Section 128A(2) of the Customs Act, 1962, and the amended Section 35A(3) of the Excise Act confer similar powers upon the Commissioner (Appeals) to pass orders confirming, modifying, or annulling the decision appealed against. Referring to the Supreme Court's decision in UOI v. Umesh Dhaimode, it was established that the power to remand the matter for fresh decision is inherent in the appellate authority's jurisdiction. The tribunal emphasized that the power to remand is essential for the appellate authority to ensure justice and proper adjudication.

Regarding the judgment in MIL India Ltd., the tribunal clarified that the observations made by the Supreme Court were incidental and cannot override the core finding in the Umesh Dhaimode case. Additionally, the tribunal highlighted the Gujarat High Court's ruling in CCE, Ahmedabad v. Medico Labs, affirming the Commissioner (Appeals)' continued power to remand post-amendment. The tribunal emphasized that Section 35A(3) allows for the annulment of the original order and the issuance of a just and proper order, which may necessitate remanding the matter for fresh adjudication in certain circumstances to uphold principles of natural justice and prevent prejudice to the Revenue.

In conclusion, the tribunal upheld the power of the Commissioner (Appeals) to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3). The appeal filed by the department was dismissed based on the analysis of relevant legal provisions and precedents, affirming the jurisdiction of the Commissioner (Appeals) to remand cases for fresh adjudication when deemed necessary for justice and proper resolution.