2012 (7) TMI 168 - AT - Central Excise

Power of Commissioner (Appeals) to remand the case back for de novo adjudication in view of amendment in Section 35A of the Central Excise Act, 1944 - Held that - Wording of the section 35A(3) is exactly similar to the wording of Section 128(2) of the Customs Act, 1962 which deals with the power of the first appellate authority. Supreme Court in case of Union of India vs. Umesh Dhaimode (1997 (2) TMI 140 (SC)) while interpreting Section 128(2) of the Customs Act, held that aforesaid provision vested the appellate authority with power to remand the matter back. In view of the aforesaid position in law expounded by the Supreme Court, no merit exists in appeals.

Summary

Issues:
1. Commissioner (Appeals) remand power under Section 35A of the Central Excise Act, 1944.

Analysis:
The appeals were filed by the Revenue against a common order of the Commissioner (Appeals) remanding the matter back to the adjudicating authority for re-examination of the refund claims of the respondent. The Revenue contended that the Commissioner (Appeals) had no power to remand the case back for de novo adjudication as per Section 35A of the Central Excise Act, 1944. On the other hand, the respondent argued that based on various judgments, the Commissioner has the power to remand the case for fresh adjudication even after the amendment of Section 35A. The Revenue conceded that it was a fit case for remand but emphasized that the power of the Commissioner (Appeals) to remand had been taken away by the amendment in Section 35A.

The key contention revolved around the interpretation of Section 35A(3) of the Central Excise Act, which is similar to Section 128(2) of the Customs Act, 1962. The Supreme Court's decision in Union of India vs. Umesh Dhaimode clarified that the appellate authority has the power to set aside the decision under appeal and remand the matter for fresh decision. The Court held that the provision vests the appellate authority with the power to pass such orders as it deems fit, including remanding the case. Therefore, in light of this legal position, the Court found no merit in the appeals filed by the Revenue.

In conclusion, the appeals and cross-objection were disposed of accordingly, affirming the power of the Commissioner (Appeals) to remand the case back for fresh adjudication despite the amendment in Section 35A of the Central Excise Act, 1944.