Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Import), ... vs M/S. Abb Ltd on 21 July, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
APPLICATION NO. C/S/407/09 IN APPEAL NO. C/231/09 Mum
(Arising out of Order-in-Appeal No. 18/2009/MCH/AC/GVC/08-09 dated 02.01.09 passed by the Commissioner of Customs (Appeals), Mumbai)
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 Customs (Import), Mumbai
:
Appellants
Versus
M/s. ABB Ltd.
Respondents
Appearance Shri. N.A. Sayyed, JDR for Appellant Shri. T. Viswanathan, Advocate for Respondents CORAM:
Shri. A.K. Srivastava, Member (Technical) Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 21.07.09 Date of Decision : 21.07.09 ORDER NO.
Per : Shri. Ashok Jindal, Member (Judicial) This application is filed by the Revenue for staying operation of Commissioner (Appeals) Order No. 18/2009/MCH/A.C./GVC/08-09 dated 02.01.2009. After hearing both sides for some time on the stay application, we find that it is possible to decide the appeal itself at this stage, hence after dismissing the stay application, we proceeded to decide the appeal itself.
2. This appeal is filed by the Revenue on the ground that the Commissioner (Appeals) has remanded the case to the adjudicating authority to decide the matter following principle of natural justice and then pass a speaking order.
3. Heard both sides and perused the records.
4. Vide the impugned order, the Commissioner (Appeals) while setting aside the order passed by the Asst. Commissioner has remanded the matter for re-adjudication by the original authority. The ground on which the impugned order is sought to be challenged is that the Commissioner (Appeals) has no power to remand a matter. We find that the order passed by the appellate authority is not maintainable. The Commissioner (Appeals) himself has to readjudicate the matter after hearing the parties. In the fact of the case the Revenue is justified in placing reliance in the decision in the case of Commissioner of Customs, Amritsar vs. Enkay (India) Rubber Co. Pvt. Ltd. reported in 2008 (224) ELT 393 (P&H). Attention is also drawn to the Judgement by the Apex Court in the case of MIL India Ltd. vs. CCE, Noida 2007 (210) ELT. 188 (S.C.) wherein it was observed that the power of remand by Commissioner (Appeals) has been taken away by amending Section 35A with effect from 11.5.2001 under the Finance Bill, 2001.
5. Provisions of law clearly disclose that pursuant to that amendment brought out to Section 128A of Customs Act, 1962 in the year 2001, the power of remand which was earlier available to the Commissioner (Appeals) has been specifically deleted from the statute book.
6. Considering the fact that the law is very clear, the Commissioner (Appeals) clearly erred in remitting the matter to the Asst. Commissioner. In this view of matter the impugned order is liable to be set aside and the matter to be remanded to the Commissioner (Appeals) to decide the appeal afresh after hearing both the sides in accordance with law as expeditious as possible.
7. Appeal is allowed by way of remand.
(Pronounced in Court) (A.K. Srivastava) Member (Technical) (Ashok Jindal) Member (Judicial) nsk 3