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TMI Blog2015 (1) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... t the merchant exporter M/s Punagiri Chemopharma Pvt. Ltd. filed an application in form Annexure-19 for proof of export in 7 cases pertaining to exports made during the period July 2010 to November 2010. The Deputy Commissioner, Central Excise, Kuria Division rejected the proof of export and ordered recovery of duty amounting to Rs. 4471024/-. The applicant department filed appeal before Commissioner (Appeals) on the ground that the impugned order is beyond the prescribed monetary limits for adjudication by the Deputy Commissioner. It was prayed in the Revenue's appeal that the impugned order may be set aside and the matter may be remanded to the original authority for passing a fresh order. 2.1 Simultaneously, the merchant exporter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the adjudicating authority for fresh consideration. 3.2 Board vide its circular No.275/34/2006-0X.8A dated 18.2.2010 has clearly directed that in view of the Hon'ble Supreme Court Judgment in the case of MIL India Ltd. and the judgment of Hon'ble High Court of Punjab and Haryana in the case of M/s Enkay (India) Rubber Co. Pvt. Ltd. Suitable instructions have been issued to the Commissioner (Appeals) to follow the said judgments strictly. It has been categorically stated in view of the Court judgments that the powers of the remand had been taken away but Commissioner (A) continues to exercise the power of adjudicating authority in the matter of assessment and he can add or subtract certain items of the order of assessment by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the new shape of Section 35A(3) after said amendment of 2001, which is clearly mentioned in paragraph 2 of the above said CBEC instruction. 4.2 It is clear & evident from provision of Section 35A(3) that the Commissioner (Appeals) can confirm, modify or annul the decision appeal against. And, that is what he did in the impugned order-in-appeal, when he stated as "In view of the above, the impugned order is set aside and the appeals are allowed. 4.3 The Commissioner (Appeals) in the impugned order-in-appeal did not refer the matter back to the adjudicating authority for fresh consideration. Rather stated there as "In view of the above, the impugned order is set aside and the appeals are allowed': But, it is better known to Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemicals as mentioned in RCMC No. CHEM/ME/R-5/2010-11/13055 issued in their favour by CHEMEXIL, as per Rule 19 of the Central Excise Rules, 2002 read with Notification No.42/2001-CE (Ni) dated 26.06.2001. 4.5 On completion of export the Respondent/merchant exporter had submitted all relevant documents of proof of export before the jurisdictional authority, Deputy Commissioner Mumbai-II which were not accepted. And vide 010 No.02/Punagri/2011-12 dated 28.07.2011 Deputy Commissioner Mumbai-II had ordered recovery of duty to the tune of Rs. 44,71,024/- from them. Which was subsequently set aside by .Commissioner (Appeals)- vide OIA- No.US/9 10/M-II/2012 dated 17.01.12. 5. Personal hearing scheduled in this case on 3.4.2014 was attended by Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed. He further held that the adjudicating authority did not grant a personal hearing in the matter and passed order without observing principle of natural justice. As such he allowed both the appeals. Now the applicant department has filed these revision applications on grounds mentioned in para (3) above. 8. Government observes that this revision application has been filed by the applicant department mainly on the ground that the Commissioner (Appeals) has not decided the issue on merits and also that Commissioner (Appeals) by allowing the appeal filed by the department has in fact remanded the case back to original authority which is not permitted in terms of Section 35A of the Central Excise Act 1944. 8.1 Government finds that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order which is bad in law. Government therefore is of view that matter is required to b remanded back for considering the matter afresh on merits of the case by following principle of natural justice. 9. In view of above discussions Government sets aside the impugned orders and remands the cases back to original authority to decide the same afresh on merits of case by considering the document being submitted by party as proof of export. A reasonable opportunity of hearing will be afforded to concerned parties. Respondent party is directed to submit all the records/documents evidencing export of goods in question before original authority within 15 days of receipt of this order. The original authority will pass order in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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