2016 (10) TMI 722 - AT - Customs

Jurisdiction of Commissioner (Appeals) - Section 128 A(3) of Customs Act, 1962 - limited power of Commissioner (Appeals) only to confirm, modify and annual the Order-in-Original - the Commissioner(Appeals) has directed the Original Adjudicating authority to verify the documents, thus she has not finally decided the appeal but remitted to the original authority - whether the remand order passed by Commissioner (Appeals) is within his jurisdiction? - the refund was sanctioned and was credited to the Consumer Welfare fund therefore the limited issue before the Commissioner(Appeals) was to decide the aspect of unjust enrichment - Held that - The Commissioner(Appeals) has no power to remand the matter whereas she could decide the appeal finally on the basis of documents placed before her. The issue of unjust enrichment can be decided by the Commissioner(Appeals) on the basis of documents produced before the Commissioner(Appeals) - impugned order set aside - matter remanded to the Commissioner(Appeals) for deciding the appeal finally only on the issue of unjust enrichment - Appeal disposed off.

Issues:
1. Interpretation of Section 128A(3) of the Customs Act, 1962 regarding the powers of the Commissioner (Appeals) in deciding appeals.
2. Determination of whether the Commissioner (Appeals) has the authority to remand a matter or is limited to confirming, modifying, or annulling the Order-in-Original.
3. Consideration of the aspect of unjust enrichment in the context of a refund sanctioned and credited to the Consumer Welfare fund.

Analysis:

Issue 1: Interpretation of Section 128A(3) of the Customs Act, 1962 regarding the powers of the Commissioner (Appeals) in deciding appeals.

The appeal in question was directed against an Order-in-Appeal passed by the Commissioner of Customs (Appeals), Mumbai. The Revenue contended that the Commissioner (Appeals) did not finally decide the appeal but remitted it to the original adjudicating authority for verification of documents. The Revenue argued that as per Section 128A(3) of the Customs Act, 1962, the Commissioner (Appeals) is limited to confirming, modifying, or annulling the Order-in-Original, and does not have the power to remand the matter. The Assistant Commissioner representing the Revenue reiterated this argument, emphasizing that the Commissioner (Appeals) should have decided the matter finally based on the records and documents before her.

Issue 2: Determination of whether the Commissioner (Appeals) has the authority to remand a matter or is limited to confirming, modifying, or annulling the Order-in-Original.

On the other hand, the Counsel for the respondent contended that the Commissioner (Appeals) merely directed the verification of documents, a task that the sanctioning authority was supposed to perform. Therefore, the Counsel argued that the order of the Commissioner (Appeals) did not constitute a remand order, and thus, the ground raised by the Revenue in their appeal should not be accepted. The Tribunal carefully considered the submissions from both sides and deliberated on the powers of the Commissioner (Appeals) in light of Section 128A(3) of the Customs Act, 1962.

Issue 3: Consideration of the aspect of unjust enrichment in the context of a refund sanctioned and credited to the Consumer Welfare fund.

The Tribunal noted that in the original order, the refund was sanctioned and credited to the Consumer Welfare fund. The limited issue before the Commissioner (Appeals) was to determine the aspect of unjust enrichment. The respondent had submitted documents before the Commissioner (Appeals). The Tribunal opined that the Commissioner (Appeals) should have decided the appeal finally based on the documents presented to her, particularly on the issue of unjust enrichment. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a final decision solely on the issue of unjust enrichment. It was emphasized that both the Revenue and the assessee should be given sufficient opportunity for a hearing, and the Commissioner (Appeals) was expected to dispose of the matter within a period of two months from the receipt of the order.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT MUMBAI highlights the key issues addressed, arguments presented by both parties, and the Tribunal's decision regarding the powers of the Commissioner (Appeals) under the Customs Act, 1962.

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