2009 (9) TMI 144 - AT - Central Excise

Remand power of Commissioner - The appellants filed this appeal against the impugned order whereby the Commissioner (Appeals) remanded the matter to the adjudicating authority for re-examination of the facts and law and directed the adjudicating authority to pass a fresh order. - Hon ble Supreme Court in the case of MIL India Ltd. v. Commissioner of Central Excise, Noida reported in 2007 - TMI - 1196 - SUPREME COURT OF INDIA and the Hon ble Punjab & Haryana High Court in the case of C.CEx. v. Enkay (India) Rubber Co. Pvt. Ltd., held that Commissioner (Appeals) has no power to remand the matter to the adjudicating authority after the amendment made under Rule 35A of the Central Excise Rules - Gujarat High Court in the case of C.CEx. Ahmedabad-I v. Medico Labs, held that Commsioner (A) having held that even after the amendment to the provisions of Section 35A of the Central Excise Act, the Commissioner (Appeals) has power to remand - held that the appellate authority has power to pass such order as it deemed fit confirming, modifying or annulling the decision of the appealed against and an order of the remand necessarily annuls the decision which is under an appeal before the appellate authority - In view of the above decision of the Hon ble Supreme Court, the order of remand necessarily annuls the decision which is under an appeal. In the circumstances, I find no merit in the appeal and the same is dismissed.

Summary

Issues:
1. Power of Commissioner (Appeals) to remand the matter after the amendment of Rule 35A of the Central Excise Rules.
2. Applicability of Central Excise Rules at the time of arrival of the machine.
3. Authority of the appellate tribunal to pass orders of remand.

Analysis:
1. The appeal was filed against an order remanding the matter to the adjudicating authority for re-examination due to the incorrect application of Rule 16(1) of the Central Excise Rules, which was not in force at the time of the machine's arrival. The Revenue contended that the Commissioner (Appeals) lacked the power to remand post the amendment under Rule 35A. Citing the decision in the case of MIL India Ltd. and Enkay (India) Rubber Co. Pvt. Ltd., it was argued that the Commissioner (Appeals) had no authority to remand the matter after the amendment.

2. The Tribunal noted the judgments in the cases of MIL India Ltd. and Enkay (India) Rubber Co. Pvt. Ltd., where it was established that the Commissioner (Appeals) lacked the power to remand post the amendment of Section 35A. However, in the present case, it was observed that the adjudicating authority applied rules not applicable at the time of the machine's arrival, leading to findings against the relevant provisions of law. Consequently, the matter was remanded for a fresh decision.

3. Referring to the decision of the Hon'ble Gujarat High Court in the case of C.CEx. Ahmedabad-I v. Medico Labs and a previous ruling by the Bench in the case of CCEx., Kolkata-III v. Panihati Castings Pvt. Ltd., it was established that the Commissioner (Appeals) retained the power to remand even after the amendment to Section 35A. The Tribunal further cited the decision of the Hon'ble Supreme Court in the case of Union of India v. Umesh Dhaimode, affirming the appellate authority's power to pass orders as deemed fit, including confirming, modifying, or annulling decisions. The Tribunal concluded that the order of remand annuls the decision under appeal, and in light of the Supreme Court's decision, found no merit in the appeal, ultimately dismissing it.