2009 (6) TMI 186 - AT - Customs

Whether Commissioner (Appeals) has no power to remand a matter - Provisions of law clearly disclose that pursuant to amendment brought out to Section 128 of Customs Act, 1962 in the year 2001, the power of remand which was earlier available to the Commissioner (Appeals) has been specifically deleted from the statute book - Apex Court in MIL India Ltd. v. CCE, Noida 2007 - TMI - 1196 - SUPREME COURT OF INDIA has also observed that, the power of remand by Commissioner (Appeals) has been taken away by amending Section 35A Central Excise Act, 1944 with effect from 11-5-2001 under the Finance Bill, 2001 - considering the fact that the law is very clear, the Commissioner (Appeals) clearly erred in remitting the matter to the Asst. Commissioner. In this view of matter the impugned order is liable to be set aside and the matter to be remanded to the Commissioner (Appeals) to decide the appeal afresh

Issues Involved:
1. Commissioner (Appeals) remanding a matter for re-adjudication.
2. Power of remand under Section 128 of Customs Act, 1962.
3. Effect of amendment to Section 128 in the year 2001.
4. Judgment by the Hon'ble High Court of Punjab & Haryana.
5. Observations by the Apex Court in MIL India Ltd. case.
6. Error by Commissioner (Appeals) in remitting the matter.
7. Setting aside the impugned order and remanding the matter.
8. Timeframe for deciding the appeal by Commissioner (Appeals).

1. Commissioner (Appeals) remanding a matter for re-adjudication:
The appeal was heard concerning the order passed by the Commissioner (Appeals) remanding the matter for re-adjudication by the Assistant Commissioner. The challenge was based on the argument that the Commissioner (Appeals) lacked the power to remand a matter. The appellants relied on previous judgments to support their contention.

2. Power of remand under Section 128 of Customs Act, 1962:
The provisions of law revealed that the power of remand available to the Commissioner (Appeals) under Section 128 of the Customs Act, 1962, was deleted from the statute book following an amendment in 2001. The High Court of Punjab & Haryana held that the Commissioner (Appeals) no longer had the authority to remand a case back to the Adjudicating Authority.

3. Effect of amendment to Section 128 in the year 2001:
The Finance Act, 2001, explicitly removed the power of remand from the Commissioner (Appeals). The deletion of this provision by the Legislature indicated a clear intention, as supported by various judgments, including those by the Supreme Court.

4. Judgment by the Hon'ble High Court of Punjab & Haryana:
The High Court emphasized that once the power of remand was removed by the Finance Act, 2001, the Commissioner (Appeals) could no longer remand a case. The Court cited relevant case laws to support this position.

5. Observations by the Apex Court in MIL India Ltd. case:
The Supreme Court, in the MIL India Ltd. case, noted that the power of remand by the Commissioner (Appeals) was eliminated through an amendment to Section 35A. This observation was made in the context of the Central Excise Act, 1944.

6. Error by Commissioner (Appeals) in remitting the matter:
It was concluded that the Commissioner (Appeals) erred in remitting the matter to the Assistant Commissioner, considering the clear legal position that the power of remand had been removed. The impugned order was deemed liable to be set aside.

7. Setting aside the impugned order and remanding the matter:
The orders passed by the Commissioner (Appeals) and the Tribunal were set aside, and the matter was sent back to the Commissioner (Appeals) for a decision in accordance with the law within a specified timeframe.

8. Timeframe for deciding the appeal by Commissioner (Appeals):
To expedite the process, the Commissioner (Appeals) was directed to decide the appeal within four months from the date of receipt of the order, considering the prolonged pendency of the matter before the Tribunal and the Court.

The appeal was disposed of accordingly, emphasizing the legal constraints on the power of remand by the Commissioner (Appeals) and the need for adherence to the statutory provisions.

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