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2017 (8) TMI 593 - HC - Central ExciseJurisdiction - power of the Joint Commissioner of Central Excise to remand the matter to the adjudicating authority - Section 85 of the Finance Act 1994 - Held that - the first respondent while exercising powers under Section 85 (4) of the Finance Act has powers to pass orders as he thinks fit and such orders will also include an order of remand and amendment to Section 35-A (3) with effect from 11.05.2001 does not in any manner impact the power of the Commissioner of Central Excise (Appeals) while dealing with an order passed under the Finance Act - petition dismissed - decided against petitioner.
Issues Involved:
1. Jurisdiction of the Commissioner of Central Excise (Appeals) to remand matters to the adjudicating authority. 2. Availability and bypassing of alternative remedy by the petitioner. 3. Interpretation and application of Section 85 of the Finance Act, 1994, and Section 35-A of the Central Excise Act, 1944. Issue-wise Detailed Analysis: 1. Jurisdiction of the Commissioner of Central Excise (Appeals) to Remand Matters: The core issue addressed was whether the Commissioner of Central Excise (Appeals) has the jurisdiction to remand matters to the adjudicating authority under Section 85 of the Finance Act, 1994. The petitioner argued that the Commissioner (Appeals) lacked this power due to the amendment to Section 35-A of the Central Excise Act by the Finance Act 2001, which removed the explicit power of remand. The petitioner cited the Supreme Court decision in MIL India Limited v. Commissioner of C.Ex., Noida [2007 (210) ELT.188 (SC)], which noted that the power to remand was specifically deleted. The respondent countered by referring to the Supreme Court's decision in Union of India Vs. Umesh Dhaimode, 1998 volume (98) ELT 584 (SC), which held that the power to annul a decision includes the power to remand. The court concluded that Section 85(4) of the Finance Act, 1994, allows the Commissioner (Appeals) to pass orders as deemed fit, which includes the power to remand, and the amendment to Section 35-A(3) does not affect this power. 2. Availability and Bypassing of Alternative Remedy: The petitioner sought to bypass the alternative remedy of appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT) by filing a writ petition, arguing that the remand order by the Commissioner (Appeals) was without jurisdiction. The court emphasized that the merits of the case cannot be addressed in a writ petition under Article 226 of the Constitution of India and that the petitioner must approach the Tribunal/CESTAT for such matters. The court reiterated that the availability of an effective alternative remedy is a significant factor in deciding the maintainability of a writ petition. 3. Interpretation and Application of Section 85 of the Finance Act, 1994, and Section 35-A of the Central Excise Act, 1944: The court analyzed the provisions of Section 85 of the Finance Act, 1994, and Section 35-A of the Central Excise Act, 1944. The petitioner argued that Section 85(5) of the Finance Act requires the Commissioner (Appeals) to follow the procedure of the Central Excise Act, and since Section 35-A(3) no longer provides for remand, the Commissioner (Appeals) cannot remand matters. The respondent argued that Section 85(4) of the Finance Act allows the Commissioner (Appeals) to pass orders as deemed fit, which includes remand. The court held that Section 85(5) does not incorporate the provisions of Section 35-A(3) into the Finance Act, and Section 85(4) provides the Commissioner (Appeals) with the power to remand. The court also noted that Section 83 of the Finance Act, which lists applicable provisions of the Central Excise Act, does not include Section 35-A, indicating that it cannot be superimposed into Section 85 of the Finance Act. Conclusion: The court dismissed the writ petitions, holding that the Commissioner of Central Excise (Appeals) has the power to remand matters under Section 85(4) of the Finance Act, 1994. The court directed the petitioner to approach the Tribunal/CESTAT for issues on the merits of the assessment and allowed the exclusion of the period during which the writ petitions were pending before the court from the computation of limitation for filing an appeal before the Tribunal.
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