2018 (6) TMI 935 - AT - Customs

Jurisdiction - power of Commissioner (Appeals) to remand the case - Held that - After amendment in Section 35A(3) of the Central Excise Act, 1944, the Commissioner (Appeals) has not been vested with the powers of remanding the case to adjudicating authority. The Ld. Commissioner (Appeals) remanded the matter to the adjudicating authority on the ground that there is violation of principles of natural justice. Even if the Ld. Commissioner (Appeals) has no power to remand but if there is violation of principles of natural justice, there is no option except the matter to be reconsidered by the adjudicating authority by providing the personal hearing to the assessee. Therefore in any case the adjudicating authority has to relook in the entire matter. Appeal allowed by way of remand.

Summary

Issues:
1. Power of remand by Commissioner (Appeals) after amendment in Section 35A(3) of the Central Excise Act, 1944.
2. Violation of principles of natural justice in the adjudication process.

Analysis:
1. The appeal was filed by the revenue against an Order-in-appeal passed by the Commissioner (Appeals). The case involved the misdeclaration of imported "Polyster Fabrics" as made from Non-Texture Polyster yarn, leading to duty assessment issues. The revenue later confirmed the duty demand after retesting the fabrics and issued a demand notice. The Respondent contended that the adjudication order was flawed due to lack of challenging the assessment under Section 129D of the Act and non-supply of relied upon documents, violating principles of natural justice. The Commissioner (Appeals) remanded the case back to the adjudicating authority, leading to an appeal by the revenue on the remand power issue.

2. The Tribunal noted that the Commissioner (Appeals) did not have the power of remand after the amendment in Section 35A(3) of the Act. However, despite this limitation, if there is a violation of principles of natural justice, the matter must be reconsidered by the adjudicating authority to ensure fairness. Therefore, the Tribunal decided to set aside the impugned order and remand the matter back to the adjudicating authority for a fresh consideration while upholding the principles of natural justice. This decision was made to rectify any procedural irregularities and ensure a fair adjudication process for all parties involved.