2009 (9) TMI 142 - AT - Central Excise

Revenue filed this Appeal against the impugned order whereby Commissioner (Appeals) remanded the matter to the adjudicating Authority to decide afresh - contention of Revenue is that the Commissioner has no power to remand after the amendment to the provisions of Section 35A of the Central Excise Act. - This issue has already been settled by the Tribunal in the case of Commissioner of Central Excise Jamshedpur v. Telco Construction Equipment Co. Ltd. in which the Tribunal held that even after amendment Commissioner (Appeals) having power to remand - In view of the above decision of the Tribunal I find no merit in the Appeal. The same is dismissed

Summary

Issues:
1. Commissioner's power to remand after amendment to Section 35A of the Central Excise Act.

Analysis:
The Appellate Tribunal heard an appeal filed by the Revenue against an order where the Commissioner (Appeals) remanded the matter to the adjudicating Authority for fresh consideration after taking into account the Tribunal's decision. The Revenue contended that the Commissioner lacked the power to remand post the amendment to Section 35A of the Central Excise Act. The Tribunal referred to its decision in a previous case and highlighted that the Commissioner (Appeals) indeed possesses the authority to remand. This position was supported by the Hon'ble Gujarat High Court and the Hon'ble Supreme Court in various cases, emphasizing that the appellate authority can pass orders confirming, modifying, or annulling the decision under appeal, with a remand order necessarily annulling the decision being appealed against. Consequently, the Tribunal found no merit in the Revenue's appeal and dismissed it based on the established legal principles and precedents.

In conclusion, the Tribunal upheld the power of the Commissioner (Appeals) to remand a matter for fresh consideration even after the amendment to Section 35A of the Central Excise Act. The decision was supported by legal precedents from the Tribunal, the Hon'ble Gujarat High Court, and the Hon'ble Supreme Court, emphasizing the authority of the appellate body to pass appropriate orders in appeals, including remanding a case for further assessment. The Tribunal's ruling was based on a comprehensive analysis of relevant legal provisions and judicial interpretations, ensuring a fair and just resolution in accordance with established legal principles.