Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Mumbai ... vs Marks Aleli India Pvt. Ltd on 25 March, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
APPEAL NO. E/2792/03 E/CO/127/04 Mum
(Arising out of Order-in-Appeal No. PKA/56/Mumbai-II/2003 dated 10.6.2003 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
For approval and signature:
Honble Shri. A.K. Srivastava, Member (Technical)
and
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Commissioner of Central Excise, Mumbai II
:
Appellant
Versus
Marks Aleli India Pvt. Ltd.
Respondent
Appearance Shri N.A. Sayyed, JDR for Appellant Request for adjournment for Respondents CORAM:
Shri. A.K. Srivastava, Member (Technical) Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 25.3.09 Date of Decision : 25.3.09 ORDER NO.
Per : Shri. Ashok Jindal, Member (Judicial) This appeal has been filed by the Revenue against the Order-in-Appeal No. PKA/56/Mumbai-II/2003 dated 10.6.2003 by which the Commissioner (Appeals) has remanded the case back to the Adjudicating authority for denovo decision.
2. Heard both the sides and perused the records.
3. M/s. Marks Aleli India Pvt. Ltd. situated at Khanna Estate, Vikholi (W), Mumbai 400 073 the respondents (hereinafter referred to assessee) are engaged in the manufacture of branded soaps failing under chapter sub heading 3401.19 of Central Excise Tariff Act, 1985.
4. The issue involved in the case is that the assessee has failed to declare the normal price in accordance with Section 4 of Central Excise Act 1944 and that they had contravened the provisions of Rule 173C, 173F and 173G(1) read with Rule 9(1) of Central excise Rule 1944 was engaged in the manufacturing of printed aluminium foils and printed paper rolls falling under chapter subheading 7607.50 and 4811.39 of Central Excise Tariff Act 1985. The assessee had evaded the payment of duty amounting to Rs.21,40,295/- therefore, show cause notice for the period covering from December 1997 to January 1999 was issued to demand and recover from them under Section 11A of the Central Excise Act 1944 and a penalty clause was invoked under Rule 173Q and Rule 210 of Central Excise Rule 1944 and also interest clause was invoked under Section 11AB of the Central Excise Act, 1944. The show cause notices were confirmed by the Deputy Commissioner Central Excise, Vikhroli Division, Mumbai II vide order-in-original No. 40-50/2000/D.C dated 19.4.2000 for Rs.21,40,295/- and also imposed a penalty of Rs.5,000/- per show cause notice totaling to Rs.35,000/- under the relevant provisions.
5. The assessee aggrieved by the decision of the order-in-original preferred an appeal with the Commissioner (Appeals). The Commissioner (Appeals) after going through the submissions and the merits of the case remanded the case back for denovo adjudication for the purpose of reworking of allowable deduction in the light of the documents submitted by the appellants to check the admissibility of deductions claimed and if found admissible, working out the allowable deductions thereunder. The same was readjudicated by the then Asst. Commissioner Central Excise, Mumbai II. The Asst. Commissioner went through the merits and submissions filed in the said case and found that the deductions claimed under freight, secondary packing, interest on stock and receivable, issuance of branch stock, cost and freight and selling expenses, bank charges were liable to be disallowed and no demands were made on Octroi, CST, TOT additional service tax. The Asst Commissioner accepted the price lists and rejected the deductions claimed and confirmed the demand of Rs.21,40,295/- and penalty of Rs.35,000/-. The assessee aggrieved by the decision under order-in-original No. 23/2002/A.C.Vikroli dated 26.4.2002 preferred an appeal with the Commissioner (Appeals). The Commissioner (Appeals) on going through the submissions and the merits of the case set aside the decision passed under the above referred order-in-original and remanded the case back for denovo adjudication with instructions that the adjudicating authority while adjudicating the case should consider the Boards instructions issued under Circular Nos. 294/28/96-CX dated 29.3.1996, 251/85/96-CX dated 14.10.1996, 255/89/96-CX dated 29.10.96, 354/81/2000-TRU dated 30.6.2000 and 643/34/2000-CX dated 1.7.2002 and pass a speaking order. Aggrieved by the decision of the Commissioner (Appeals), the Revenue prayed for setting aside the order-in-appeal. Ld. DR submits that in the light of Honble apex courts judgement in the case of MIL India Ltd. vs. CCE 2007 (79) RLT 1 (SC) and the ruling of Honble Punjab & Haryana High Courts judgement in the case of CCE, Jalandhar vs. B.C. Kataria 2008 (84) RLT 449 (P&H) = 2008 (221) ELT 508 (P&H) the Commissioner (Appeals) does not have the power to remand the case back to the adjudicating authority after deletion of that power from Section 35A (3) of the Central Excise Act, 1944. The ld. DR also refers the Tribunals decision in the case of N. Ranga Rao & Sons vs. CC, Bangalore 2009 (90) RLT 46 (CESTAT-Ban.) wherein the order of remand by the Commissioner (Appeals) was set aside.
6. We have carefully considered the submissions made by both sides and perused the records.
7. In the light of decisions cited above, we are of the considered view that the Commissioner (Appeals) has no power to remand the matter. The Commissioner (Appeals) has to act as an adjudicating authority and to decide the case based on the entire materials and evidence placed before him. The ld. DR also refers to Section 35A (3) of Central Excise Act wherein the Commissioner (Appeals) has been empowered to make further enquiry and to pass such an order. In view of the present state of law as laid down by the apex court judgement rendered in the case of MIL India Ltd (supra) and the High Court of Punjab & Haryana judgement rendered in the case of CCE vs. B.C. Kataria (supra) and the Tribunals decision in the case of N. Ranga Rao & Sons vs. CC, Bangalore (supra), the Commissioner (Appeals) has to decide the case on merits by calling for all records and evidence.
8. In view of the above submissions, the order of the remand in the present case is set aside. The Commissioner (Appeals) is directed to decide the case on merits in accordance with law after hearing the assessee. He shall pass the order expeditiously preferably within six months of the receipt of the order. The appeal is allowed by way of remand to the Commissioner (Appeals). Accordingly, Cross Objection filed by the respondent is also disposed of.
(Pronounced in Court) (A.K. Srivastava) Member (Technical) (Ashok Jindal) Member (Judicial) nsk 5