2017 (9) TMI 1476 - AT - Central Excise

Power of remand - whether the Commissioner (Appeals) has no power of remand as the said power was taken away by the amending Section 35A of the CEA, 1944, w.e.f. 11.05.2001? - Held that - the Order-in-Appeal dated 09.03.2011 has attained finality due to non-filing of appeal by the Revenue against that order. Therefore, Revenue is prohibited from contesting the issue in other proceedings - Since the Revenue has not preferred any appeal against the said order, the order has attained finality and there cannot be any subsequent order - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Power of remand under Section 35A of the Central Excise Act, 1944.

Analysis:
The appeal was filed by the Revenue against Order-in-Appeal No.22/Kol.VII/2010 dated 05.03.2010 passed by the Commissioner (Appeals) of Central Excise, Kolkata. The sole ground in the Revenue's appeal was that the Commissioner (Appeals) had no power of remand as per the amending Section 35A of the Central Excise Act, 1944, effective from 11.05.2001. The Revenue cited various judgments, including those of the Hon'ble Apex Court, to support their contention that the power of remand had been eliminated by the amendment to Section 35A.

The Advocate representing the Respondent-Assessee submitted a copy of Order-in-Appeal No.58/Kol-VII/2011 dated 09.03.2011, passed by the Commissioner (Appeals), Kolkata I, in their favor. The Advocate argued that since the Revenue did not appeal against this order, it had attained finality, making the present appeal by the Revenue redundant. The Advocate relied on decisions such as LML Ltd. Vs. Collector and Commissioner: Bala Handlooms Exports Co. Ltd. to support their stance. Additionally, the Advocate referenced judgments like CCE Vs. Surcoat Paints (P) Ltd. and Boving Fouress Ltd. Vs. CCE to emphasize that the Revenue was barred from contesting the issue in other proceedings due to the finality of the earlier order.

After hearing both parties and reviewing the records, the Judicial Member noted that the Commissioner (Appeals) had decided the issue on merit in the appeal filed by the Assessee and allowed it through the Order-in-Appeal dated 09.03.2011. Since the Revenue did not challenge this order by filing an appeal, it had reached finality, precluding any subsequent order. Consequently, the appeal filed by the Revenue was dismissed based on this ground alone. The decision was pronounced in the open court, and the appeal by the Revenue was rejected.