2018 (7) TMI 1665 - AT - Central Excise

Jurisdiction - power of Commissioner (Appeal) to remand the case - amendment of Section 35A (3) of the Central Excise Act - Held that - There are conflicting decisions regarding the power of remand by the Commissioner (Appeal) after amendment of Section 35A (3) of the Central Excise Act by Finance Act, 2001. This issue has been finally decided after considering the conflicting judgements on the issue by the Larger Bench in case of Commissioner of Central Excise , Bhubaneswar Vs. Oripol Industries 2003 (5) TMI 86 - CEGAT, NEW DELHI , where it was held that the respondent cannot be heard to contend that the Commissioner (Appeals) would still retain the power of remand as an inherent power of the appellate authority. In case of Viper Chemicals 2002 (6) TMI 216 - CEGAT, MUMBAI , it has been held that Commissioner (Appeal) is not empowered to remand the case to Adjudicating Authority in view of amendment carried out in the Section 128 (3) of the Customs Act, 1962; the Section 128 (3) is pari materia with Section 35A (3) of Central Excise Act, 1944 after amendment carried out vide Finance Act, 2001. The case is remanded back to Commissioner (Appeal) for taking appropriate action as per law following the principle of natural justice - appeal of Revenue allowed.

Summary

Issues:
1. Interpretation of remand power of Commissioner (Appeal) post-amendment of Section 35A (3) of the Central Excise Act.

Analysis:
The appeal was filed by the Revenue against the Order-in-Appeal No. 45/JSR/2009, which remanded the matter to the adjudicating authority. The Revenue contended that post-amendment of Section 35A, the Commissioner (Appeal) lacked the power to remand. They cited the Supreme Court decision in M/s. MIL India Ltd. case and judgments from Punjab & Haryana High Court to support their stance. However, conflicting views existed, with the Gujarat High Court holding that the Commissioner (Appeal) retained the power to remand. The Tribunal's previous order in Commr. of Central Excise, JSR Vs. Tata Steel upheld the remand power of the Commissioner (Appeal) post-amendment, which was challenged by the Department. Another judgment highlighted the lack of remand power post-amendment, reinforcing the conflicting interpretations. The Larger Bench decision in Commissioner of Central Excise, Bhubaneswar Vs. Oripol Industries settled the issue, aligning with the Gujarat High Court's view, allowing the Commissioner (Appeal) to remand the case.

The Tribunal considered the conflicting judgments and the Larger Bench decision, ultimately setting aside the Commissioner (Appeal)'s order and allowing the Revenue's appeal. The case was remanded back to the Commissioner (Appeal) for further action in accordance with the law and principles of natural justice. This decision was based on the interpretation of Section 35A (3) post-amendment and the alignment with the Gujarat High Court's view on the remand power of the Commissioner (Appeal) in such cases.

This detailed analysis of the judgment showcases the legal intricacies surrounding the remand power of the Commissioner (Appeal) post-amendment of Section 35A (3) of the Central Excise Act, highlighting the conflicting interpretations, relevant case laws, and the final resolution provided by the Tribunal based on the Larger Bench decision.