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TMI Blog2023 (10) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... g Limited, Chennai had filed five refund claims totally amounting to Rs.28,66,920/- being the amount paid towards 4% SAD against the import of various furniture vide 8 Bills of Entry under Notification No. 102/2007-Cus. dated 14.09.2007, as amended by Notification No. 93/2008 dated 01.08.2008. The details of the said claims are as under: - Sl. No. Date of filing of claim Amount (in Rs.) 1. 08.03.2010 69,190/- 2. 29.04.2010 1,19,892/- 3. 03.05.2010 98,410/- 4. 31.05.2010 12,95,714/- 5. 28.06.2010 12,83,714/- TOTAL 28,66,920/- 3.1 Out of the above five claims, the first four claims totally amounting to Rs.15,83,206/- was sanctioned vide Order-in-Original No. 12619/2010 dated 16.07.2010 and the fifth claim amounting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner) appeared for the appellant Revenue. The respondent was not represented, either in person or by counsel. However, since several adjournments had already been granted on the ground of non-appearance of respondent, the matter has been taken up for disposal on merits after hearing the Ld. Departmental Representative. 6. The Ld. AR stated that the Commissioner (Appeals) erred in directing the Department to review the issue once again and file fresh appeal within one month from the date of receipt of the order. The same is without the sanction of law as there is no provision for such directions under the Customs Act, 1962. The direction of the Commissioner (Appeals) is contrary to the Board's Instruction in F.No. 275/34/2006-CX.8A dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led the Commissioner (Appeals) order as there is no provision for the Commissioner (Appeals) to remand a matter under consideration to be reviewed once again and to file a fresh appeal within one month from the date of receipt of the order as per the Customs Act, 1962. The direction of the Commissioner (Appeals) in the impugned order are averred by Revenue to be also contrary to the observations of the Hon'ble Apex Court against the powers of Commissioner (Appeals) to remand a matter, in the case of 'MIL India' supra. The implications of the said Apex Court's judgment has been examined in Instructions F.No. 275/34/2006- CX.8A dated 18-2-2010 issued by CBIC. Relevant provisions of the circular are reproduced below. Section 35A(3) of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 122 seeks to amend Section 35A so as to withdraw the power of the Commissioner(A) to remand matters back to the adjudicating authority for fresh consideration." The said decision of the Supreme Court was brought to the notice of CESTAT in the case of CCE, Jallandhar Vs. Hawkins Cookers Ltd. reported in 2007(8)RLT.7, but the Tribunal held that the Supreme Court in the said case had only noted the provisions of amended law whereas the specific issue whether Commissioner(A) has power to remand after amendment to provisions of Section 35A has been considered by the Hon'ble Gujarat High Court in the case of Medico Lab and the High Court has held that the Commissioner (A) has power to remand under the amended provisions also. The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Boards circular. As clarified by the Apex Court the Commissioner (Appeals) continues to exercise the power of adjudicating authority in the matter of assessment. Hence having original powers in matters related to assessment as per the statute, it was expected of the lower authority to examine and dispose of the matter on merits. The Commissioner (Appeals) was not vested with any powers to remand a matter under consideration with a direction for the issue to be reviewed once again and if necessary to file a fresh appeal under the Customs Act, 1962. The amendment brought out in the sections pertaining to the powers of the Commissioner (Appeals) vide Finance Act, 2001 w.e.f. 11.5.2001, is a part of a beneficial legislation to ensure tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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