9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2010 (5) TMI 86 - AT - Service TaxPower of the commissioner of central excise (Appeals) to remand the matter appellants submits Commissioner does not have power to remand after amendment to Section 35A(3) of Central Excise Act, 1944 and therefore seeks remand the matter to Commissioner to hear the matter afresh and decide the issue in respect of remand contradictory judgments of different High Courts. Held that in the case of M/s Medico Lab, Hon ble Gujarat High Court was dealing with the issue of remand only and after considering the issue in detail, Hon ble High Court had come to the conclusion that the Commissioner has powers to remand. In view of the fact that there are contradictory decisions of the Tribunal and other than the decision of Hon ble High Court of Punjab & Haryana there is no other decision holding a contrary view to that of Hon ble Gujarat High Court in Medico Lab - as far as Gujarat State is concerned, the decision of Hon ble Gujarat High Court is binding and accordingly Commissioner has power to remand the matter and therefore no interference is called for
Issues: Whether the Commissioner (Appeals) has the power to remand the matter back to the original adjudicating authority after the amendment under Section 35A(3) of the Central Excise Act, 1944 by the Finance Act, 2001.
Analysis: 1. The appeal in question revolves around the issue of whether the Commissioner (Appeals) retains the authority to remand a matter to the original adjudicating authority following the amendment under Section 35A(3) of the Central Excise Act, 1944. The learned advocate representing the appellant argues that the Commissioner lacks the power to remand post-amendment and seeks a remand to the Commissioner to reevaluate the issue. Reference is made to the decision of the Hon'ble High Court of Gujarat in the case of M/s Medico Labs 2004 (173) ELT 117 (Guj.) to support this stance, acknowledging the existence of contradictory decisions on this matter within the Tribunal. 2. The contradictory nature of decisions regarding the authority of the Commissioner (Appeals) to remand the matter is highlighted. While cases like M/s Mongia Hitech Pvt. Ltd. 2010 (251) ELT 85 (Tri-Kolkata) and M/s Oripol Industries 2003 (155) ELT 278 (T-LB) have held that the Commissioner lacks the power to remand, a different view was taken in the case of M/s Garlon Polyfab India Ltd. 2008 (222) ELT 128 (Tri-Del.), asserting the Commissioner's remand authority. Moreover, the Hon'ble High Court of Punjab & Haryana in the case of B.C. Kataria 2008 (221) ELT 508 (P&H) aligned with the former view, following the precedent set by the Hon'ble Gujarat High Court in the Medico Lab's case. 3. The analysis delves into the reliance on the decision of the Hon'ble Supreme Court in the case of M/s MIL India Ltd. 2007 (210) ELT 188 (S.C.) to support the notion that the Commissioner lacks remand powers. However, upon closer examination, it is clarified that the Supreme Court's discussion on the amendment of the Section was not a definitive ruling. Conversely, the Hon'ble Gujarat High Court's detailed consideration in the case of M/s Medico Lab led to the conclusion that the Commissioner does possess the authority to remand. Given the conflicting Tribunal decisions and the absence of contradictory judgments to the Gujarat High Court's ruling, it is determined that the Commissioner has the power to remand in Gujarat. 4. Ultimately, the conclusion drawn is that, in the context of Gujarat State, the decision of the Hon'ble Gujarat High Court in Medico Lab prevails, affirming the Commissioner's ability to remand the matter. Consequently, the appeals filed by the appellant are rejected, emphasizing the binding nature of the Gujarat High Court's decision on this issue.
|
