Custom, Excise & Service Tax Tribunal
M/S Bharti Electronics vs Cce, Delhi-Ii on 3 July, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi COURT-I Date of hearing/decision: 03.07.2009 Excise Appeal No. 2614, of 2007 [Arising out of order-in-appeal No. 66-70/CE/DLH/2007 dated 07.06.2007 passed by the Commissioner, Central Excise, Delhi-II] M/s Bharti Electronics Appellant Vs. CCE, Delhi-II Respondent
AND Excise Appeal No. 2615 of 2007 [Arising out of order-in-appeal No. 66-70/CE/DLH/2007 dated 07.06.2007 passed by the Commissioner, Central Excise, Delhi-II] M/s Synotech International Appellant Vs. CCE, Delhi-II Respondent AND Excise Appeal No. 2617 of 2007 [Arising out of order-in-appeal No. 66-70/CE/DLH/2007 dated 07.06.2007 passed by the Commissioner, Central Excise, Delhi-II] Krishan Mohan Garg, Partner Appellant Vs. CCE, Delhi-II Respondent For approval and signature:
Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri M. Veeraiyan, 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? Appearance:
Appeared for the Appellant Shri Prabhat Kumar with Sh. S.S. Dabas, Advocates Appeared for the Respondent Shri V. Chaudhary, SDR Coram: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri M. Veeraiyan, Member (Technical) Oral Order No.____________________ Per Shri Justice R.M.S. Khandeparkar:
On the request of the learned Advocate the appeals are being taken up on board for final disposal.
2. Upon hearing the learned Advocate for the appellant and learned DR for the respondent, it is seen that though the impugned order is sought to be challenged on various grounds, it is not necessary to consider all those grounds and appeals can be disposed of on single ground, namely, failure on the part of the lower appellate authority to consider the fact that in terms of the provisions of law it has no jurisdiction to remand the matter and in case of any illegality in the order passed by the lower authority, then it has to set aside such order and reconsider the matter afresh as if it is the original authority. This is so w.e.f. 11th May 2001 pursuant to the amendment in Section 35A of the Central Excise Act, 1944. Sub-section (3) of Section 35A w.e.f. 11th May 2001 reads thus-
The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or ann7ulling the decision or order appealed against, provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order; Provided further that where the Commissioner (Appeals) is of the opinion that any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in Section 11A to show cause against the proposed order.
3. The provision of law comprising of sub-section (3) of Section 35A of the said Act clearly discloses that it is the duty of the Commissioner (Appeals), to pass an appropriate order either confirming, modifying or annulling the decision or order passed by the original authority, but it has no power of remand which was there prior to amendment to Section 35A in the year 2001. Undisputedly, the impugned order was passed in 2007, that is, much after deletion of power of remand to the Commissioner (Appeals). Being so, the impugned order remanding the matter cannot be sustained and is liable to be set aside and the matters need to be sent back to the Commissioner (Appeals) to deal with the same in accordance with the provisions of law under Section 35A (3).
4. It has been informed that pursuant to the direction in the impugned order, the Additional Commissioner has already proceeded with the matter to quantify the duty. Needless to say that once the orders passed by the Commissioner (Appeals) are to be held as without jurisdiction, the same will have no legal impact. Being so, if the Additional Commissioner has proceeded to quantify the duty liability in terms of the impugned order without jurisdiction, the same will have no legal effect, and would not be legally enforceable.
5. In the result, therefore, the appeals succeed on the limited ground. The impugned orders are hereby set aside without expressing any opinion on the merits of the case and the matters are remanded to the Commissioner (Appeals) to dispose of the appeals in accordance with the provisions of law.
(Justice R.M.S. Khandeparkar) President (M. Veeraiyan) Member (Technical) /Pant/