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TMI Blog2014 (12) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... strict the power of the Tribunal to remand the matter back to the competent authority having given a ruling thereon. We find no error in the order of the Tribunal. Yet another factor which we find in favour of the Department is that the show cause notice was issued by the Superintendent of Central Excise, which Department had jurisdiction to initiate proceedings and the order of adjudication on being set aside by the Tribunal for lack of jurisdiction, the original show cause notice survives and therefore, that has to be adjudicated only by a competent authority in terms of Section 2(1) of the Customs Act. When such being the case, the competent adjudicating authority alone has jurisdiction to adjudicate the issue on the subsisting show cause notice. We find no error in the order of the Tribunal. - Decided against assessee. - Civil Miscellaneous Appeal No. 1070 of 2008 & M.P.No.1 of 2008 - - - Dated:- 28-11-2014 - R. Sudhakar And Pushpa Sathyanarayana,JJ. For the Appellant : Mr. T. Ramesh For the Respondents : Mr. K. Mohanamurali - R2 R3 JUDGMENT (Delivered by R. Sudhakar,J.) This Civil Miscellaneous Appeal filed against the order dated 12.03.2007 made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from March, 2003 appears to be contrary to Rule 17 of Central Excise Rules 2002 as it does not have provision to adjust the cenvat credit by the 100% EOU. On breach of this Rule, despite intimation by the Range Officer, show cause notice dated 20.6.2003 was issued by the Superintendent of Central Excise, Ponneri Range, Ponneri in OC.No.273/2003, the relevant portion of which reads as follows: Hence the assesseess are required to show cause to the Deputy Commissioner, Chennai V division, Koyambedu, Chennai - 600 107 as to why (1) the cenvat credit amount of ₹ 57,66,223/- (Rupees fifty seven lakhs sixty six thousand two hundred and twenty three) availed and utilized irregularly by the assessees should not be denied under Rule 12 of cenvat credit Rules 2002 and the same amount should not be demanded from them under rule 17 of the Centrl Excise Rules 2002 read with section 11A of CEA 1944 along with interest in terms of section 11AB of central excise Act 1944. (2) Penalty should not be imposed on them under section 11 AC of the central excise Act, 1944 as they have willfully availed the cenvat credit and utilized the same towards payment of duty for the DTA clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 M/s.C.P.Aquaculture (India) Pvt. Ltd. shall pay the said amount of duty alongwith interest. (ii) I impose a penalty of ₹ 6,00,000/- (Rupees six lakhs onlyl) on M/s.C.P.Aquaculture (India) Pvt. Ltd., No.104, GNT Road, Nallur Vijayanallur village, Sholavaram Post, Redhills, Chennai -600 067 under Rule 25(1)(a) of the Central Excise Rules, 2002. 4. As against the said order of the Adjudicating Authority, the appellant has preferred an appeal before the Tribunal challenging the order both on merits as well as on the issue of jurisdiction of the Commissioner of Customs, who passed the order of adjudication. 5. The Tribunal took up the primary objection raised by the appellant/assessee and came to the conclusion that there was no dispute that on an after 31.3.2003, the assessee was no longer an 100% EOU and in respect of the violation alleged, a show cause notice was issued in June, 2003 when admittedly the assessee was a DTA unit. The Tribunal was of the view that consequent to the debonding of the unit, it went out of the administrative control of the Commissioner of Customs and came under the jurisdiction of Central Excise administration. The Tribunal held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to the Appellate Tribunal to grant extension of time. All that provio to Section 21 provides is for passing an order either for waiver or reduction of the amount to be made as pre-deposit for entertaining an appeal. The proviso to Section 21 does not speak of extension of time or such other relief. The statute has to be interpreted in its plain and simple form. When the conditional order has not been complied with, the appeal came to be dismissed. Therefore, this Court finds no ground to interfere with the said order. There is no basis to challenge the proceedings alleging that it is not in accordance with the provision to Section 21 as pleaded by the learned counsel for the petitioner. No other point was canvassed. 10. We have no difficulty in accepting the proposition made by the learned counsel appearing for the appellant, but Section 2(1) of the Customs Act defines Adjudicating Authority , which reads as follows: (1) adjudicating authority means any authority competent to pass any order or decision under this Act, but does not include the Board, Commissioner (Appeals) or Appellate Tribunal 11. Section 129B of the Customs Act speaks about the power of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Save as otherwise provided in section 130 or section 130E, orders passed by the Appellate Tribunal on appeal shall be final. (emphasis supplied) 12. The power of the Tribunal to remand the case back to the Authority would mean the Authority prescribed under Section 2(1), ie., the competent authority. In this case, it is not disputed by either side that the competent Authority is Commissioner of Central Excise. The primary objection before the Tribunal by the appellant on jurisdiction issue is that the competent authority is not the Commissioner of Customs, but Commissioner of Central Excise. 13. A conjoint reading of Section 129B with Section 2(1) of the Customs Act makes it clear that the order should be passed only by a competent authority who has jurisdiction to pass an order and therefore, the Tribunal, if it found an error in the order passed by an authority, is justified to remand the case back to the competent authority. Section 129B does not restrict the power of the Tribunal to remand the matter back to the competent authority having given a ruling thereon. We find no error in the order of the Tribunal. 14. Yet another factor which we find in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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