2013 (1) TMI 247 - AT - Central Excise

Power to remand the matter for de novo adjudication u/s 35A by Commissioner (Appeals) - Section 228 of the Customs Act Held that - Following the decision in case of () that there is no specific power of remand given u/s 228 of the Customs Act to the Commissioner (Appeals), yet the power to remand the matter to the adjudicating authority is inbuilt in the said provision. Therefore, we do not find merit in the plea of the revenue that the Commissioner (Appeals) after the amendment of Section 35A has no power to remand the case for de novo adjudication. Decides against revenue Remanded back for de novo adjudication - Department failed to supply to the respondent un-relied upon documents seized during investigation despite of request Circular No. 42/88-CX, dated 24-5-1988 - Circular No. 48/88-CX.6, dated 10-6-1988 - Held that - As per these circulars, the documents/records which are not relied upon in the Show Cause Notice are required to be returned under proper receipt to the persons from whom they are seized. Therefore, we do not find any fault with the above approach adopted by the Commissioner (Appeals), therefore, the impugned order remanding the matter for de novo adjudication after supply of copies of relevant documents to the respondent cannot be faulted. Against revenue

Summary

Issues:
1. Power of Commissioner (Appeals) to remand a case for de novo adjudication.
2. Compliance with principles of natural justice regarding the supply of unrelied upon documents during investigation.

Analysis:

Issue 1: Power of Commissioner (Appeals) to remand a case for de novo adjudication:
The appeal challenged the order-in-appeal of the Commissioner (Appeals) that set aside the order-in-original passed by the Jt. Commissioner, Central Excise, and remanded the matter for de novo adjudication. The revenue contended that post the amendment of Section 35A of the Central Excise Act by the Finance Act, 2001, the Commissioner (Appeals) lacked the authority to remand cases. However, referencing a Supreme Court case, it was established that even though the Customs Act and the Central Excise Act do not explicitly grant the power to remand, the appellate authority inherently possesses the authority to remand a case for fresh decision. Consequently, the plea of the revenue was dismissed, affirming the Commissioner (Appeals) had the power to remand the matter for de novo adjudication.

Issue 2: Compliance with principles of natural justice regarding the supply of unrelied upon documents during investigation:
The Department argued that the remand order was unjust as the respondent had not cooperated during the adjudication proceedings and had declined unrelied upon documents. However, the Commissioner (Appeals) remanded the case due to the Department's failure to provide the respondent with unrelied upon documents despite repeated requests, violating principles of natural justice. Citing Circulars and judgments, it was emphasized that unrelied documents should be returned within thirty days of receiving the show cause notice. The Commissioner (Appeals) followed precedents and directed the adjudicating authority to supply all relevant documents before proceeding with the case. This approach was upheld, concluding that the remand order was justified to ensure compliance with principles of natural justice. Consequently, the appeal and stay application were dismissed.

In conclusion, the judgment clarified the power of the Commissioner (Appeals) to remand cases for de novo adjudication and highlighted the importance of adhering to principles of natural justice by providing all relevant documents, relied and unrelied upon, to the concerned parties during investigations and adjudication proceedings.