2003 (10) TMI 74 - AT - Central Excise

Issues Involved:
1. Whether the Commissioner (Appeals) has the power to remand cases to the original adjudicating authority after the legislative changes made by the Finance Act, 2001.

Issue-wise Detailed Analysis:

1. Legislative Background and Amendments:
The primary issue revolves around whether the Commissioner (Appeals) retains the power to remand cases after the Finance Act, 2001 amendments. Initially, the customs and excise laws did not explicitly provide for remand powers to the appellate authority. A specific provision was introduced in 1982, which was later deleted in 2001. The current legal text post-2001 is similar to the pre-1982 text. This similarity was acknowledged by the Larger Bench of the Tribunal in CCE, Bhubaneshwar v. Oripol Industries & Ors., noting that the wording of the present section after the 2001 amendment is more or less similar to the pre-1982 position.

2. Judicial Interpretations Pre-1982:
The pre-1982 legal text was examined by the Division Bench of the Andhra Pradesh High Court and the Supreme Court in Timmasamudram Tobacco Co. v. ACCE and UOI v. Umesh Dhaimode. The Andhra Pradesh High Court ruled that the absence of a specific provision for remand does not disable the appellate authority from sending the matter back to the original officer. The Supreme Court in Umesh Dhaimode ruled that the appellate authority has the power to set aside the decision under appeal and remand the matter for a fresh decision, as an order of remand necessarily annuls the decision under appeal.

3. Post-2001 Legal Text and Interpretation:
Post-2001, the law vests the Appellate Authority with powers to "pass such order as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against." This is strikingly similar to the pre-1982 provision. The Tribunal's Larger Bench in Oripol Industries ruled that the Commissioner (Appeals) does not have the power of remand under the post-2001 provision. However, the Single Member Bench disagreed, preferring the Supreme Court's decision in Umesh Dhaimode, which interpreted a similar provision to include the power of remand.

4. Notes on Clauses and Legislative Intention:
The Larger Bench cited the Supreme Court's decision in Shashikant Laxman Kale v. U.O.I. to support its finding that the Notes on Clauses indicated an intention to withdraw the power of remand. However, the Single Member Bench pointed out that the Supreme Court distinguished between the purpose or object of legislation and the legislative intention relating to the legal meaning of the enactment. The purpose or object of the 2001 amendment was to withdraw the power of remand, but the legislative text did not explicitly state this, leaving the interpretation open.

5. Judicial Precedents and Binding Nature:
The Single Member Bench emphasized that the Supreme Court's decision in Umesh Dhaimode is binding and should be preferred over the Larger Bench's decision in Oripol Industries. The Supreme Court's interpretation of the pre-1982 provision, which is similar to the post-2001 text, suggests that the appellate authority retains the power to remand.

6. Practical Implications and Judicial Discipline:
The decision highlights the practical implications of not having remand powers, which could result in unsatisfactory resolutions and jeopardize public revenue and interest. The Editor's Comment underscores the importance of judicial discipline, noting that a Single Member Bench should adhere to the decisions of a Larger Bench unless referred to a higher bench for reconsideration.

Conclusion:
The judgment concludes that the Commissioner (Appeals) continues to have the power of remand under the post-2001 provisions, following the Supreme Court's decision in Umesh Dhaimode. Consequently, the appeals and stay applications filed by the Department were dismissed. The judgment also implicitly suggests that legislative clarity is needed to avoid unsatisfactory states of affairs and ensure judicial consistency.

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