Custom, Excise & Service Tax Tribunal
Commr. Of Central Exise, Jsr vs M/S Telco Construction Equipment Co. ... on 10 September, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.410/09
Arising out of Order-in-Appeal No.49/JSR/2009 dated 29.4.09 passed by Commr. of Central Excise & Service Tax (Appeals), Ranchi.
SHRI S. S. KANG, HON'BLE VICE PRESIDENT
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Exise, Jsr.
...APPELLANT(S)
VERSUS
M/s Telco Construction Equipment Co. Ltd.
RESPONDENT (S)
APPEARANCE Shri R. K. Chakraborty, JDR for the Department Shri Rudranil Roy, Authorized Representative for the Respondent (S) CORAM:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT Date of hearing & decision : 10.09.2009 ORDER NO......................................................................................... Per Shri S. S. Kang :
Heard both sides. The appellants filed this appeal against the impugned order whereby the Commissioner (Appeals) remanded the matter to the adjudicating authority for re-examination of the facts and law and directed the adjudicating authority to pass a fresh order. As the adjudicating authority has wrongly applied the provisions of Rule 16 (1) of the Central Excise Rules, 2002, the same were not in force at the time of arrival of machine in question. The main contention of the Revenue is that the Commissioner (Appeals) has no power to remand the matter to the adjudicating authority after the amendment made under Rule 35A of the Central Excise Rules and in support of this contention, the Revenue relied upon the decision of the Hon'ble Supreme Court in the case of MIL India Ltd. Vs. Commissioner of Central Excise, Noida reported in 2007 (210) ELT 188 (SC) and the decision of the Hon'ble Punjab & Haryana High Court in the case of CCEx. Vs. Enkay (India) Rubber Co. Pvt. Ltd. reported in 2008 (224) ELT 393 (P & H).
2. I find that in the case of MIL India Ltd. (cited supra), the Hon'ble Supreme Court noticed the amended provisions of Section 35A of the Central Excise Act and in the case of Enkay (India) Ltd., (cited supra), the Hon'ble Punjab and Haryana High Court held that the Commissioner (Appeals) has no power to remand the matter after the amendment of Section 35A.
3. I find that in the present case, the situation is peculiar. The adjudicating authority applied the provisions of Central Excise Rules which are not applicable at the time of arrival at the machine in question. Therefore, the whole findings are against the relevant provisions of law which are applicable at the time of relevant time. In the situation, the matter was remanded to the adjudicating authority to decide afresh.
4. Further, I find that the Hon'ble Gujarat High Court in the case of CCEx. Ahmedabad I Vs. Medico Labs reported in 2004 (09) LCX 0038, held that even after the amendment to the provisions of Section 35A of the Central Excise Act, the Commissioner (Appeals) has power to remand. This view was followed by this Bench in the case of CCEx., Kolkata III Vs. Panihati Castings Pvt. Ltd. reported in 2008 (10) LCX 0295. Further, I find that the Hon'ble Supreme Court in the case of Union of India Vs. Umesh Dhaimode reported in 1997 (02) LCX 0211, held that the appellate authority has power to pass such order as it deemed fit confirming, modifying or annulling the decision of the appealed against and an order of the remand necessarily annuls the decision which is under an appeal before the appellate authority. Even by virtue of the amended provisions of Section 35A of the Central Excise Act, a power has been conferred on the Commissioner (Appeals) to pass such order as it deemed fit confirming, modifying or annulling the decision of the appealed against. In view of the above decision of the Hon'ble Supreme Court, the order of remand necessarily annuls the decision which is under an appeal. In the circumstances, I find no merit in the appeal and the same is dismissed.
(Dictated and pronounced in the open Court) Sd/ (S. S. KANG) VICE PRESIDENT mm 4 Ex.Appeal No.410/09