2009 (7) TMI 928 - AT - Central Excise

Summary

Issues: Jurisdiction of lower appellate authority post-amendment in Section 35A of the Central Excise Act, 1944.

Upon hearing the learned Advocate for the appellant and learned DR for the respondent, it is observed that the impugned order is challenged primarily on the ground of failure of the lower appellate authority to consider the fact that it lacks jurisdiction to remand the matter post-amendment in Section 35A of the Central Excise Act, 1944. The provision of law under sub-section (3) of Section 35A clearly states that the Commissioner (Appeals) is required to pass an appropriate order confirming, modifying, or annulling the decision or order, without the power of remand. The impugned order, passed after the 2001 amendment, remanding the matter is deemed unsustainable. Therefore, the matters are to be sent back to the Commissioner (Appeals) for proper adjudication in accordance with the law.

It has been brought to light that the Additional Commissioner has proceeded to quantify the duty liability based on the direction in the impugned order. However, since the orders passed by the Commissioner (Appeals) are considered to be without jurisdiction, any actions taken by the Additional Commissioner pursuant to the impugned order would lack legal enforceability. Consequently, the appeals succeed on the limited ground, and the impugned orders are set aside without delving into the merits of the case. The matters are remanded to the Commissioner (Appeals) for further proceedings in compliance with the provisions of law under Section 35A(3) of the Central Excise Act, 1944.