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TMI Blog2013 (1) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent authority. Again, the last sentence of the said paragraph also specifically says that the appeal is disposed of. It would indicate that the appeal was not allowed or was not rejected. It would also mean that the Tribunal in the Final Order No. 513/2000-C, dated 15-11-2000 had intended that the competent authority should take up the matter for disposal. I am fortified in my view by the decision of the Larger Bench of the Tribunal in the case of Wilson and Company (2000 (5) TMI 68 - CEGAT, COURT NO. I, NEW DELHI) - Decided against assessee. - E/1277/2005 - Final Order No. A/10159/2013-WZB/AHD - Dated:- 23-1-2013 - Ms. Archana Wadhwa, Member (J), Shri B.S.V. Murthy, Member (T) Shri P.M. Dave, Advocate, for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. ORDER After hearing both sides, duly represented by Shri P.M. Dave, learned advocate appearing for the appellant and Shri Sameer Chitkara, learned SDR appearing for the Revenue, we find that the proceedings were initiated against the appellant for clubbing clearances of 4 manufacturers. Such proceedings culminated into an order passed by Assistant Commissioner, Central Excise, Valsad in Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been issued, by the Commissioner and the case also adjudicated by him. The said Circular authorizes the Commissioner and the Additional Commissioner and not the Deputy Commissioner and the Joint Commissioner to issue the show cause notice and adjudicate the case. Since the adjudication has been done by the Joint Commissioner, the same is not as per the directions as contained in the said circular and the miscellaneous application is liable to be allowed on the ground of jurisdiction. I confine myself only to the ground of jurisdiction which was raised before the Hon ble High Court and in view of the aforesaid circular, I am of the view that the case should have been adjudicated by the original authority at the level of Commissioner/Additional Commissioner. The miscellaneous application filed by the appellant is allowed to the above extent. 4. The Tribunal while disposing the appeal of Rajputana Steel Castings observed as under : 6. As is seen from the above, though the Tribunal has observed that the case should have been adjudicated by the Commissioner/Deputy Commissioner, there are no such directions to re-adjudicate, in the said order of the Tribunal. The applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral 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. 7. 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 the matter afresh in the absence of any direction to the contrary. The observations made by the Tribunal to the effect that the case should have been adjudicated by the original adjudicating authority at the level of Commissioner/Deputy Commissioner cannot be interpreted or construed as a direction to the Commissioner to decide the case afresh. The same, at best, is the reasoning adopted by the Tribunal for setting aside the impugned order. By observing so, Tribunal held that order passed in the remand procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng adjudicating jurisdiction and it was upheld and consequently application succeeds and thereby the order is set aside even though it has not been stated in so many words. In the application the request would have been to set aside the order. Therefore, this would be an obvious conclusion. In V.K. Palappa Nadar case, before the Hon ble Madras High Court, the High Court interpreted the words without prejudice to the merits of the case to mean that Central Board of Revenue did not go into merits, whereas the Revenue had interpreted it to mean that lower authority was at liberty to consider the case afresh on merits. It is also to be noted that in that case also, there was no observation that the case was remanded but the observation was that order passed by the Collector shall be vacated. Going to the Tribunal s order dated 15-11-2000, the observation is the matter could be adjudicated by the competent adjudicating authority. The Tribunal found Assistant Collector of Central Excise not competent to adjudicate and observed as such and thereafter said that matter could be adjudicated by the competent adjudicating authority . According to me the difference between should have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the subsequent proceedings also were not required. While the adjudicating order is non est show cause notice is not. Hence competent authority can adjudicate upon the issue. Thus the interpretation of the order dated 15-11-2000, meant that the case was remanded to competent authority to adjudicate would be in accordance with the decision of Five Member Bench besides being the interpretation according to me for the reasons explained earlier. The Assistant Commissioner s order was appealed against and after rejection of the appeal by Commissioner, before the Tribunal, a miscellaneous application was filed challenging only the jurisdiction and merits have not been considered at all. Since issue raised was of competency, the Tribunal observed that matter could be adjudicated by the competent authority. Therefore, competent adjudicating authority can very well adjudicate the case now. 10. In fact Hon ble High Court of Delhi in DRI v. Kumarpal reported in 2008 (224) E.L.T. 522 (Del.) while considering jurisdiction issue had observed :- Para 23. Prima facie, proceedings in a Court lacking territorial jurisdiction would not render the proceedings void unless the erroneous exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Adv. and also the facts of the case before I close. 12. The ld. Adv. submitted that order of the Tribunal cannot be considered to be a remand order since in his opinion remand order means that the matter has to go back to the same authority who originally adjudicated the issue. For this purpose, he has cited Section 35C of Central Excise Act, 1944 and the dictionary meaning of the remand . It is the submission of the advocate that Section 35C empowers the Tribunal to refer the case back to the authority which passed such decision or order. This would mean that the case has to go back to the same authority. I feel that such restricted meaning is not intended by the Legislature. It has to be noted that many times the Tribunal remands the case back to the original adjudicating authority, even though appeal has been filed against the order of the Commissioner (Appeals). Therefore, what is meant by this clause in Section 35C is that the Tribunal may send the case back to the original adjudicating authority or the appellate authority as per the discretion. The interpretation of the ld. Adv. if accepted would mean that even in the case of specific remand order by the Tribunal to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when they requested that the case should be remanded to the Assistant Collector. This being so, suddenly before the Tribunal a miscellaneous application was filed questioning the jurisdiction. Tribunal is the last fact finding body and advocates as well as Departmental Representatives are required to assist the Tribunal in appreciating the facts correctly, interpret the same and render justice. In this case, till now there has been no detailed explanation as to how and why the Assistant Commissioner was not competent to adjudicate. While it is clear that as per circular dated 14-5-1992, the Assistant Commissioner was not competent to adjudicate the show cause notice what was the position prior to that date has not been brought up or dealt with. Unless the circular had retrospective effect which is not the case or there is another circular which curtails the powers of the Assistant Collector from adjudicating cases like this, facts on the basis of which order was passed on 15-11-2000 does not appear to be correct. However, these observations are not really relevant as far as conclusion reached by me above. Nevertheless, if the facts as seen by me from the records available are corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Guj.) reiterated by the Hon ble High Court in the case of C.C.E. Cus. v. Jagat Texturising reported in 2010 (255) E.L.T. 353 (Guj.). With these observations, Hon ble President directed that the matter be returned and placed before the concerned Bench. 18. As directed by the Hon ble President, the difference of opinion is revised as under : DIFFERENCE OF OPINION 19. In the facts and circumstances of the case whether the order of this Tribunal dated 15-11-2000 is to be treated as an order remanding the matter to appropriate adjudicating authority as held by Member (Technical) or the same has to be treated as the one allowing appeal in its totality without any further direction to the lower authorities for re-deciding the issue as held by learned Member (Judicial). Sd/- Sd/- (B.S.V. Murthy) (Archana Wadhwa) Member (Technical) Member (Judicial) (Pronounced in Court on 25-8-2010) 20. [Per : M.V. Ravindran, Member (J)]. - This Difference of Opinion is listed before me as per orders of Hon ble President for deciding the points of difference arose between the Bench while deciding the Appeal No. E/1277/2005. 21. Following Difference of Opinion ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Wilson Company - 2000 (119) E.L.T. 224 (Tribunal-LB), had specifically stated so. 26. On careful consideration of the submissions made by both sides, I find that the issue involved in this case is regarding the interpretation of Para 3 of our Final Order No. 513/2000-C, dated 15-11-2000, which is reproduced below. 3. We have carefully considered the matter. On hearing both sides with reference to the jurisdiction point we felt that the matter itself can be disposed off on the limited issue. We find that Board has issued a circular prescribing the monetary limit of the Assistant Commissioner in adjudicating the cases relating to demand under Section 11A of the Act. Accordingly, the Assistant Commissioner was not competent to adjudicate the matter raising the demand of duty more than ₹ 50,000, except in cases relating to approval of classification list and price list. We are convinced that this case is not of either approval of classification list or of price list. Under these circumstances, the Assistant Commissioner was not competent to adjudicate the matter since the demand of duty in this case is of ₹ 52 lakhs. In view of this monetary limit, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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