2019 (5) TMI 141 - HC - Central Excise

Whether in the facts and circumstances of the case, the Tribunal is correct in law to dispose the Appeal as file closed, when there is no provision under Section 35-C (1) of Central Excise Act, 1944 to close the appeal for statistical purposes without going into merits? HELD THAT - In terms of Section 35-C (1) of the Act, the Appellate Tribunal may, after giving parties to the appeal an opportunity of being heard, pass such orders confirming, modifying or annulling the decision or order appealed against. The Tribunal may also refer the case back to the authority which passed such decision or order with such directions, as the Appellate Tribunal may think fit, for fresh adjudication or decision, after taking additional evidence, if necessary. The matter is remanded to the Tribunal with a direction to the Tribunal to await the decision, which is now pending before the High Court at Ahmedabad in the case of HOUSING AND URBAN DEVELOPMENT CORPORATION LTD. VERSUS COMMISSIONER 2012 (7) TMI 1072 - GUJARAT HIGH COURT .

Summary

Issues:
Challenge to the order of the Customs, Excise and Service Tax Appellate Tribunal on the grounds of legality.

Analysis:
The appellant, Revenue, challenged the order of the Tribunal, questioning the correctness of closing an appeal for statistical purposes without delving into the merits, citing the absence of such provision in Section 35 C of the Central Excise Act, 1944. The High Court considered similar cases previously, including one where the Tribunal did not decide on the correctness of the orders passed by the adjudicating authority but chose to close the case due to pending issues before a Larger Bench. The Court found the Tribunal's reasoning flawed, emphasizing that the Tribunal could have kept the matter pending or remanded it for fresh adjudication. Referring to a judgment where a similar situation led to remand, the Court concluded that the Tribunal's decision was unjustified, setting it aside and remanding the matter for further consideration.

In another case, it was highlighted that a Larger Bench of the Tribunal in Ahmedabad had passed an order based on the parties' consent to await the decision of the jurisdictional High Court before making a final determination. This situation mirrored the one at hand, where the Tribunal had prematurely closed the case. The Court, drawing from previous rulings, reiterated that the Tribunal's options included keeping the matter pending or remanding it for fresh consideration, neither of which was exercised. Consequently, the Court set aside the Tribunal's order, remanding the case for further proceedings in line with the pending decision before the High Court in Ahmedabad.

Based on the precedents and legal provisions, the High Court allowed the Revenue's appeal, setting aside the Tribunal's order and directing a remand for consideration in light of the pending decision before the High Court in Ahmedabad. The Court ruled in favor of the Revenue on the substantial questions of law raised in the appeal, without imposing any costs.