Custom, Excise & Service Tax Tribunal
M/S Devi Dayal Aluminium Indus. (P) Ltd vs Cce, Ghaziabad on 4 January, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
Excise Appeal No. 1605 of 2008
(Arising out of Order-in-Appeal No. 85-CE/GZB/2008 dated 28.03.2008 passed by the Commissioner (Appeals), Central Excise, Ghaziabad).
DATE OF HEARING : 04.01.2010
DATE OF DECISION : 04.01.2010
FOR APPROVAL AND SIGNATURE :
HONBLE MR. JUSTICE R.M.S. KHANDEPARKAR, PRESIDENT
HONBLE MR. M. VEERAIYAN, MEMBER (TECHNICAL)
1.
Whether Press Reporters may be allowed to see the order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982 ?
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3.
Whether their Lordships wish to see the fair copy of the Order ?
4.
Whether Order is to be circulated to the Departmental Authorities?
M/s Devi Dayal Aluminium Indus. (P) Ltd. . Applicant
(Rep by Sh. Bipin Garg, Adv.)
VERSUS
CCE, Ghaziabad . Respondent
(Rep. by Sh. S. Shah, DR)
CORAM : HONBLE MR. JUSTICE RMS KHANDEPARKAR, PRESIDENT
HONBLE MR. M. VEERAIYAN, MEMBER (TECHNICAL)
ORAL ORDER NO.___________________________
PER JUSTICE R.M.S. KHANDEPARKAR :
Heard the learned advocate for the appellants and learned DR for the respondent.
2. This appeal arises from order dated 28.03.2008 passed by the Commissioner (Appeals), Meerut, whereby while allowing the appeal filed by the appellants against the order passed by the adjudicating authority, the Commissioner (Appeals) has set aside the entire order passed by the adjudicating authority and remanded the matter for re-examination.
3. Brief facts relevant for the decision are that, the appellants are engaged in the manufacture of Kitchen utensils as well as Aluminium circles and strips which are classifiable under Chapter 72, 74, 76 and 79 of the Schedule to the Central Excise Tariff Act, 1985, and on the ground of clandestine removal of certain products show cause notice came to be issued to the appellants and the same was adjudicated upon by the Additional Commissioner, Ghaziabad, while confirming certain demands and dropping certain others under his order dated 30th November, 2006. As regards the demands which were confirmed, the appellants filed the appeal before the Commissioner (Appeals). While dealing with the said appeal, the Commissioner (Appeals) set aside the entire order including the order dropping certain demands against the appellants and remanded the matter for reconsideration by the impugned order.
4. Though the impugned order is sought to be challenged on various grounds, it is not necessary to consider all those grounds and suffice to refer to only one ground, namely, absence of jurisdiction of the Commissioner (Appeals) to remand the matter.
5. The provision of law comprising of sub-section (3) of Section 35A of the said Act clearly discloses that, it is the duty of the Commissioner (Appeals) to pass an appropriate order either confirming, modifying or annulling the decision or order passed by the original authority, but it has no power of remand which was there prior to amendment to Section 35A in the year 2001. Undisputedly, the impugned order was passed in 2008, that is, much after deletion of power of remand to the Commissioner (Appeals). Being so, the impugned order remanding the matter cannot be sustained and is liable to be set aside and the matter needs to be sent back to the Commissioner (Appeals) to deal with the same in accordance with the provisions of law under Section 35A(3).
6. The learned advocate has drawn our attention to the decision of this Tribunal in the matter of Bharti Electronics vs Commissioner of Central Excise, Delhi-II, reported in 2009 (243) ELT 213.
7. Since the law point being abundantly clear, the Commissioner (Appeals) could not have remanded the matter. On this ground alone, the order passed by the Commissioner (Appeals) cannot be sustained and is liable to be set aside and the matter is remanded to the Commissioner (Appeals) to consider the appeal in accordance with the provisions of law afresh and to pass an appropriate order.
8. All the other issues which are sought to be raised are kept open. In the result, the appeal is hereby allowed and the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to dispose of the appeal in accordance with the provisions of law. Appeal accordingly stands disposed of.
(JUSTICE R.M.S. KHANDEPARKAR) PRESIDENT (M. VEERAIYAN) MEMBER (TECHNICAL) Golay ??
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