Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise & ... vs M/S. Durga Re-Rolling Mills on 14 October, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO. E/1036/03 (Arising out of Order-in-Appeal No. BPS(20)106/2003 dt.17.1.2003 passed by the Commissioner of Customs & Central Excise (Appeals), Aurangabad For approval and signature: Honble Shri M. V. Ravindran, Member (Judicial) Honble Shri K.K. Agarwal, 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?
============================================================= Commissioner of Central Excise & Customs, Aurangabad :
Appellant VS M/s. Durga Re-Rolling Mills Respondent Appearance Shri H.B. Negi, Authorized Representative (SDR) None for Respondent CORAM:
Shri M. V. Ravindran, Member (Judicial) Shri K.K. Agarwal, Member (Technical) Date of decision 14/10/2008 ORDER NO.
Per : Shri K.K. Agarwal, Member (Technical) This is an appeal filed by Revenue. The brief facts of the case are that respondents have filed certain abatement claims with Commissioner which were visited by Assistant Commissioner of Central Excise (Technical) Aurangabad against which an appeal was filed with Commissioner (Appeals). Commissioner (Appeals) has set aside the order of Assistant Commissioner holding that Assistant Commissioner has no power of deciding abatement claims which can be decided by Commissioner alone in terms of Rule 96ZP(2) of the erstwhile Central Excise Rules, 1944. He accordingly remanded the matter to the Jurisdictional Commissioner to consider the appellants claim regarding abatement of duty and to pass an order on merits after observing principles of natural justice. Revenue, in its appeal has contended that the power of remand has been taken away from Commissioner (Appeals) after amendment of Section 35A w.e.f. 11.5.2001, and accordingly he could not have remanded the matter back.
2. None appeared for the respondents despite notice. We therefore heard Ld. DR and perused the records. In this case we find that it is an admitted fact that the Assistant Commissioner does not have the power to decide the abatement claims, and such power is vested only with the Commissioner. In such a scenario, Commissioner (Appeals) himself could not also have decided the abatement claim. In view of this, it appears to be a case of improper use of word remand wherein all that the Commissioner (Appeals) meant was that the matter should be decided by the Commissioner as Assistant Commissioner has no power to decide the abatement claim. The order is to be read like that only. The appeal is accordingly disposed off.
(Dictated in Court) (M. V. Ravindran) Member (Judicial) (K.K.Agarwal) Member (Technical) Sm 2