Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (I), Mumbai vs Poshs Metal Industries Pvt. Ltd on 5 June, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. IV APPLICATION No. C/S/269/09 APPEAL No. C/145/09 (Arising out of Order-in-Appeal No. 347/2008/MCH/AC/Gr.VA/2007-08 dated 29.12.2008 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Hon'ble Mr. P.G. Chacko, 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 :
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 (I), Mumbai Appellant Vs. Poshs Metal Industries Pvt. Ltd. Respondent Appearance: Shri Y.D. Banga, Authorised Representative (JCDR), for appellant Shri Mayur Shroff, Advocate, for respondent CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) Date of Hearing: 5.6.2009 Date of Decision: 5.6.2009 ORDER NO.................................
After examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dismissing the stay application, I proceed to take up the appeal.
2. The respondent in this appeal of the Revenue filed a refund claim for an amount of Rs.4.5 lakhs (redemption fine) and another amount of Rs.2 lakhs (penalty) on the strength of this Tribunal's order No. A/477/C-IV/SMB/2007 dated 14.3.2007. After hearing them, the original authority sanctioned refund, but credited the amount (Rs.6.5 lakhs) to the consumer welfare fund on the ground of unjust enrichment. Aggrieved by this decision of the said authority, the party preferred an appeal to the Commissioner (Appeals). The appellate authority took the view that the lower authority should consider the case afresh. Accordingly, it remanded the matter to the lower authority. In the present appeal, the main ground raised by the Revenue is that the learned Commissioner (Appeals) exceeded his jurisdiction by remanding the case to the lower authority. The appellant has relied on the Hon'ble Supreme Court's decision in MIL India Ltd. vs. CCE, Noida 2007 (210) ELT 188 (SC), wherein Their Lordships observed inter alia as under:-
"In fact, the power of remand by the Commissioner (A) has been taken away by amending Section 35A with effect from 11.5.2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration."
Learned JCDR has reiterated the above ground of the appeal and has urged that the remand order of the Commissioner (Appeals) be set aside. Against this prayer of the appellant, learned counsel for the respondent relies on UOI vs. Umesh Dhaimode 1998 (98) ELT 584 (SC), wherein it had been held that the powers of an appellate authority to pass orders confirming, modifying or annulling the decision appealed against would impliedly include the power of remand as well. Support has also been claimed from CCE, Kanpur vs. Garlon Polyfab Ind. Ltd. 2008 (222) ELT 128 (Tri.-Del.), wherein the above judgment of the Supreme Court in Umesh Dhaimode case was relied on to hold that appellate Commissioners would exercise the power of remand under Section 35A of the Central Excise Act and Section 128A of the Customs Act.
3. After giving careful consideration to the above arguments, I note that the short question to be settled in the first instance is whether the lower appellate authority had the power of remand when the impugned order was passed. That authority had such power prior to 11.5.2001, the date on which Section 35A of the Central Excise Act and Section 128A of the Customs Act were amended by Parliament. The Hon'ble Supreme Court considered the case of Umesh Dhaimode (supra) long before 11.5.2001 when any Commissioner (Appeals) could exercise the power of remand which was impliedly inbuilt in the above provisions. Umesh Dhaimode case (supra) was followed by this Tribunal in the case of Garlon Polyfab Ind. Ltd. (supra) long after 11.5.2001, but without regard to the Supreme Court's decision in MIL India Ltd. case. The view taken by the Hon'ble Supreme Court in Mill India case has already been extracted in an earlier part of this order and the same is clear beyond any doubt. That view was squarely followed by the Punjab & Haryana High Court in CCE, Jalandhar vs. B.C. Kataria 2008 (221) ELT 508 (P&H), wherein the case of Umesh Dhaimode (supra) was correctly distinguished. In the result, the legal position with regard to the powers of appellate Commissioners under Section 128A of the Customs Act and Section 35A of the Central Excise Act is very clear, which is to the effect that these appellate authorities have no power of remand w.e.f. 11.5.2001 inasmuch as the Parliament deliberately revoked that power. By all means, this appeal of the department has to be allowed but to the limited extent of setting aside the remand order of the Commissioner (Appeals). What next? The learned Commissioner (Appeals) took the view that the case is fit for reconsideration by the original authority. After examining the records, I have found no valid reason to interfere with this view of the learned Commissioner (Appeals). In other words, this is a fit case for remand to the original authority which shall reconsider two issues - (a) whether the doctrine of unjust enrichment is applicable to a claim for refund of fine or penalty and (b) whether, on the facts and evidence of this case, the respondent succeeds in overcoming the bar of unjust enrichment by successfully discharging their burden to show that the incidence of fine/penalty was not passed on to anybody else. Of course, if the decision on the first issue comes to be in the negative, there will be no question of crediting any amount to the consumer welfare fund. Needless to say that, on both the issues, the party should be given a reasonable opportunity of being heard.
4. The Revenue's appeal is disposed of in the above terms.
(Pronounced in Court) (P.G. Chacko) Member (Judicial) tvu 1 5