9911796707
TMI Blog2008 (3) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... 668/-. On adjudication, the Joint Commissioner vide his order dated 23-3-99 disallowed the Modvat credit, as proposed in the show cause notice and also imposed penalties on the appellant as also on the Director. Appeal against the above order was rejected by the Commissioner of Central Excise (Appeals) vide his order dated 13-10-2000. The said order was challenged by the appellants before the Tribunal. The said appeal was filed on various grounds and one of the ground was of jurisdiction wherein as per the CBE & C Circular, the show cause notice invoking larger period should be issued by the Commissioner and should be adjudicated by the Commissioner and in case of appellant the show cause notice was issued by the Deputy Commissioner. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C-IV, dated 2-2-2005. 3. Thereafter, the matter was taken up by the Commissioner, and the impugned order stands passed by him confirming duty and imposing penalty. The said order is impugned before me. 4. The appellant's contention is that earlier order having been set aside by the Tribunal without any direction to re-adjudicate the matter, the Commissioner having no jurisdiction to pass the impugned order in de novo proceedings, cannot confirm duty and penalty. On the other hand, it is the revenue's contention that the said order of the Tribunal observed that the matter should have been adjudicated by the Commissioner. As such, re-adjudication by the Commissioner is within his jurisdiction. 5. For better appreciation, I r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal without any direction of remand. I find that an identical situation was considered by the Hon'ble Madras High Court in the case of Collector of Central Excise, Madras v. V.K. Palappa Nadar - 2000 (123) E.L.T. 14 (Mad.). The order passed by the Central Board of Revenue vacating the impugned order, without prejudice to the merits of the case, was held as not being a remand order. It was observed in para 6 of the said judgment that Section 35 of Central Excise Act is a self-contained set of rules. The appellate authority has got powers to confirm, alter, annul or remand the matter. However, the order passed in appeal shall be final subject to the power of revision. The Appellate Tribunal has been given powers of the widest character, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to spell out an order of remand. We cannot also go into any collateral circumstances, to interpret the terms of the appellate order. The terms of the appellate order are, in our opinion, not sufficient for being construed as amounting to an order of remand." 6. By applying the ratio of the law declared by the Hon'ble High Court, it is seen that the Tribunal's order only adopts the reasoning of the impugned order not having been adjudicated by the proper officer, for the purpose of setting aside the impugned order. There is no clear direction to the Commissioner to adjudicate the matter afresh. Once the impugned order is set aside unconditionally, the Commissioner, in my view, was not right in re-opening the proceedings to re-decide t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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