2010 (5) TMI 251 - AT - Central Excise

Jurisdiction- loss of goods- The present appeal arises from order dated 28th February, 2005 passed by the Commissioner (Appeals), Meerut-I. The only ground on which the impugned order is challenged is that the Commissioner (Appeals) had no jurisdiction to remand the matter to the Adjudicating authority and he himself ought to have decided the matter in case he had found infirmity in the order passed by the Adjudicating authority. Held that- proviso does not speak about loss in the course of manufacturing process or reprocessing. Clause of first proviso not attracted

Summary

Issues: Jurisdiction of Commissioner (Appeals) to remand the matter and maintainability of appeal under Section 35B(1) of Central Excise Act, 1944

Jurisdiction of Commissioner (Appeals) to remand the matter:
The appeal in question stemmed from an order passed by the Commissioner (Appeals), Meerut-I, on 28th February, 2005. The appellant challenged the order on the grounds that the Commissioner (Appeals) lacked jurisdiction to remand the matter to the Adjudicating authority. The contention was that the Commissioner should have decided the matter himself if he found any deficiencies in the Adjudicating authority's order. The Tribunal concurred with the appellant's argument, emphasizing that the law is well-settled on the absence of jurisdiction for the Commissioner (Appeals) to remand the matter. Consequently, the Tribunal allowed the appeal, setting aside the impugned order and remanding the matter back to the Commissioner (Appeals) for appropriate handling in accordance with the law.

Maintainability of appeal under Section 35B(1) of Central Excise Act, 1944:
The respondents raised a preliminary objection regarding the maintainability of the appeal itself, invoking clause (a) to the first Proviso to Section 35B(1) of the Central Excise Act, 1944. This clause stipulates that no appeal shall lie to the Tribunal concerning orders related to the loss of goods during transit or storage. Citing the decision in the case of CCE, Jamshedpur v. TISCO Ltd., the respondents argued that the issue of duty liability on re-processing of certain goods, specifically sugar, fell under the purview of this clause, rendering the appeal non-maintainable. However, the Tribunal analyzed the provision and concluded that it pertained to loss of goods during transit or storage, not during the manufacturing or reprocessing process. The Tribunal highlighted that the decision in the TISCO case focused on loss in storage, not during manufacturing, thus clarifying that the bar under the said clause did not apply to losses during the manufacturing process. As a result, the Tribunal held that the appeal was maintainable, rejecting the respondents' argument and ruling in favor of the appellant.

In summary, the judgment addressed the issues of the jurisdiction of the Commissioner (Appeals) to remand a matter and the maintainability of an appeal under Section 35B(1) of the Central Excise Act, 1944. The Tribunal upheld the appellant's challenge regarding the Commissioner's jurisdiction to remand the matter, emphasizing the settled law in this regard. Additionally, the Tribunal dismissed the respondents' objection on the maintainability of the appeal, clarifying that the relevant clause did not cover losses during the manufacturing process, thereby allowing the appeal and remanding the matter for further proceedings.