2004 (9) TMI 108 - HC - Central Excise

Power of remand by the Commissioner (Appeals) u/s 35A(3) of the Central Excise Act, 1944 post the amendment by Finance Act, 2001 - Precedent - Whether a single member Bench can overrule a decision of the Larger Bench on the same issue - HELD THAT - We are of the considered opinion that without properly understanding the judgment of the Appellate Tribunal the appellant has framed second question of law in both these appeals viz. Whether a single member bench can overrule a decision of the Larger Bench decision on the same issue. There is no question of overruling the judgment of the Larger Bench. As stated earlier, the learned Single Member has held that the judgment of the Larger Bench of the appeal per incuriam in view of the judgment of the Hon'ble Supreme Court and he is bound by the Hon'ble Supreme Court judgment and not by the judgment of the Larger Bench of the Tribunal. Once, we accept the judgment of the Single Member of the Appellate Tribunal taking view against the department, then the Commissioner (Appeals) continues to have the power of remand even after the Section 35(A)(3) of the Central Excise Act, 1944 by Finance Act, 2001, then the first question does not remain to be decided as substantial question of law. We must also state that even after amendment, which has come into force with effect from 11-5-2001, powers of remand by allowing the appeal of the Commissioner (Appeals) have not been taken away specifically. In that view of the matter, we are of the considered opinion that the appellate authority viz. Commissioner (Appeals) was vested with the power while deciding the appeal as he deemed fit by confirming, modifying or annulling the decision or order appealed against him. In our considered opinion, order of remand necessarily annuls the decision, which is under appeal before the appellate authority. Therefore, we entirely agree with the view taken by the learned Single Member of the Tribunal that even after amendment of Section 35A or the Central Excise Act, the appellate authority has the power to set aside the decision, which is under appeal before it and it has power to remand the matter to the authority below for its fresh consideration. Thus, both these appeals fail and are hereby, dismissed.

Summary

Issues involved:
The judgment addresses the power of remand by the Commissioner (Appeals) u/s 35A(3) of the Central Excise Act, 1944 post the amendment by Finance Act, 2001. It also considers whether a single member Bench can overrule a decision of the Larger Bench on the same issue.

Judgment Details:

Issue 1: Power of Remand by Commissioner (Appeals) post amendment:
The case involved appeals by M/s. Medico Labs. and M/s. Texchem Corporation against orders passed by the Deputy Commissioner Central Excise, Ahmedabad. The Commissioner (Appeals) allowed the appeals and remanded the matters to the adjudicating authority for de novo consideration. The Department challenged these decisions before the Appellate Tribunal, arguing that the Commissioner (Appeals) lacked the power of remand post the amendment to Section 35A(3) of the Central Excise Act, 1944. The Tribunal dismissed the appeals, upholding the power of remand by the Commissioner (Appeals) even after the amendment.

Issue 2: Overruling of Larger Bench Decision by Single Member Bench:
The Tribunal considered conflicting views on the power of remand post-amendment. The East Regional Bench and the referring Bench held that the Commissioner (Appeals) retained the power of remand. However, the Mumbai Bench opined otherwise. The Larger Bench of the Tribunal ruled against the power of remand post-amendment. The Single Member Bench disagreed with the Larger Bench, citing Supreme Court precedents and upheld the Commissioner (Appeals)' authority to remand cases.

The judgment emphasized that the Commissioner (Appeals) continues to possess the power of remand even after the amendment to Section 35A(3) of the Central Excise Act, 1944. It highlighted the importance of following Supreme Court judgments over Tribunal decisions and affirmed the appellate authority's discretion to remand cases for fresh consideration. Ultimately, the appeals were dismissed, affirming the Commissioner (Appeals)' power of remand post-amendment.