2018 (1) TMI 617 - AT - Central Excise

Jurisdiction - power to remand - as per the department, clause 122 seeks to amend Section 35A of the of the Central Excise Act, 1944, so as to withdraw the power of Commissioner (Appeals) to remand the matters back to the Adjudicating Authority for fresh consideration - Held that - the precedent ruling of this Tribunal in the case of Commissioner of Central Excise Versus Honda Seil Power Products Ltd. 2013 (3) TMI 303 - CESTAT NEW DELHI , squarely coveres the issue in the present case, where it was held that 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) - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Correctness of allowing the appeal by way of remand under Section 35A of the Central Excise Act, 1944.
2. Interpretation of the powers of Commissioner (Appeals) in remanding matters back to the Adjudicating Authority post-amendment.
3. Precedent rulings and their applicability in determining the powers of Commissioner (Appeals) in appeals under Section 35A(3) of the Central Excise Act, 1944.

Analysis:

1. The appeal by Revenue questioned the correctness of the Commissioner (Appeals) allowing the respondent's appeal through remand, post the amendment to Section 35A of the Central Excise Act, 1944. The amendment withdrew the power of Commissioner (Appeals) to remand matters back to the Adjudicating Authority for fresh consideration. The ruling of the Supreme Court in the case of MIL India Ltd. v. Commissioner clarified this aspect.

2. The respondent's counsel argued that a Coordinate Bench of the Tribunal had differentiated the Supreme Court's ruling in MIL India Ltd. v. Commissioner, stating that the Apex Court's observations were merely passing remarks on the powers of Commissioner (Appeals) under Section 35A(3) of the Act. The Tribunal held that the observations of the Supreme Court should not override their precedent decision in Union of India v. Umesh Dhaimode. Section 35A(3) as amended empowers the Commissioner (Appeals) to annul the Order-in-Original and issue just and proper orders, including remand in specific circumstances where justice demands it.

3. After considering the contentions and reviewing the facts, the Tribunal found that the precedent ruling in the case of Commissioner of Central Excise v. Honda Seil Power Products Ltd. directly addressed the issue at hand. Consequently, the appeal by Revenue was dismissed. The Adjudicating Authority was directed to issue a reasoned order after hearing the respondent within 60 days. The respondent was also instructed to appear before the Adjudicating Authority with a copy of the order to seek a hearing in compliance with the law.

This detailed analysis of the issues involved in the judgment provides a comprehensive understanding of the legal complexities and interpretations surrounding the powers of the Commissioner (Appeals) under Section 35A of the Central Excise Act, 1944.