9911796707
TMI Blog2003 (10) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill 2001 is more or less similar to pre 1982 position". It is also true that the Parliament has stopped half way bringing the legal position back to the pre 1982 stage and has not proceeded further to specifically amend the law to say that the Commissioner (Appeals) shall not exercise the power of remand. 2.The pre 1982 legal text was specifically examined by the Division Bench of the Hon'ble High Court of Andhra Pradesh and the Hon'ble Supreme Court in the following cases :- (1) Timmasamudram Tobacco Co. v. ACCE - AIR 1961 (Andhra Pradesh) 324 (2) UOI v. Umesh Dhaimode - 1998 (98) E.L.T. 584 (S.C.) After noting that the law does not have specific provision enabling the appellate authority to remit the matter to the original authority in Timmasamudram cited supra, the Hon'ble Andhra Pradesh High Court has ruled, "We do not think that the absence of such provision disables the appellate authority from sending the matter back to the officer that passed the order." The Hon'ble High Court also ruled that without such power it is difficult for the appellate authority to dispose of an appeal satisfactorily as he has to either allow or dismiss the appeal without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes on Clauses would clearly show that the intention was to take away the power of remand from the appellate authority. To understand the true import of the Apex Court's ruling in Shashikant (supra), one has to necessarily read paragraphs 14, 15, 16, 17 and 18 of the decision (and not just two sentences from paragraph 16 forming the head note), in which the Apex Court has extensively dealt with the clear distinction between :- (i) The purpose or object of an enactment which relates to the mischief to which the enactment is directed and its remedy, and (ii) The legislative intention which relates to the legal meaning of the enactment. After quoting from Francis Bennion's Statutory Interpretation, the Apex Court has further clarified that, "while the purpose or object of the legislation is to provide a remedy for the malady, the legislative intention relates to the meaning or exposition of the remedy as enacted." In the said case, while seeking to discern the purpose or object of the impugned enactment in order to examine the validity of the classification made therein between public and private sector employees, the Apex Court has ruled that "when determining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly absurd and unjust result; income that never accrued or received cannot be taxed; the use of the word 'declared' in the said Section 52(2); the placement of the provision under Section 52; the marginal note to Section 52 and also the need to avoid a construction that takes the said Section 52(2) outside the legislative power of Parliament or renders it violative of fundamental right of an assessee. These factors are absent in the present case. On the contrary, interpretation of the post 2001 provision in a manner similar to the way the pre 1982 provision was interpreted by the Apex Court in Umesh Dhaimode (supra), does not produce any absurd or unjust result. It does not take the provision outside the legislative power of the Parliament nor does it render the provision violative of the fundamental rights. 7.Applying the ratio of K.P. Verghese and Shashikant cited supra as also the mischief rule (extracted from Heydon's case referred to in Verghese) to the extent these can be applied to the case at hand, it is certainly possible to discern the purpose or object of the 2001 amendment. The earlier legislative history and the circumstances that prevailed at the time of 2001 amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Umesh Dhaimode cited supra, one can not but conclude that the appellate authority has the power to set aside the order under appeal and to remand the matter for fresh decision. 9.In the light of the foregoing, I am of the view that the Apex Court's decision rendered in the case of Umesh Dhaimode (supra) is binding on this Bench and the same has to be preferred to the contrary decision of the three Member Bench of the Tribunal. Respectfully following the said decision of the Apex Court, I hold that the Commissioner (Appeals) continues to have the power of remand under the post 2001 provisions. Consequently, I dismiss these appeals along with the stay applications filed by the Department. 10.Before parting with these appeals, it is necessary to point out that the decision of the Division Bench of the Hon'ble High Court of Andhra Pradesh cited Supra contains an implicit suggestion for the law makers that doing away with the power of remand may result in an unsatisfactory state of affairs. Public revenue and public interest will also be in great jeopardy if, for example, in the absence of the power of remand, a Commissioner (Appeals) merely sets aside an order confirming a duty de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
