2024 (5) TMI 1588 - AT - Central Excise

Dismissal of appeal for non-compliance - failure to deposit amount towards penalty - power of Commissioner(Appeals) to remand the matter post amendment to Section 35A of the Central Excise Act 1944 in the year 2001 - HELD THAT - Revenue has challenged the order solely on the ground that after amendment to Section 35A of the Central Excise Act 1944 in the year 2001 the learned Commissioner(Appeals) does not have the power to remand the matter but to decide the case himself - there are no merit in the contention of the Revenue as the said issue has been settled by the Hon ble High Court in a series of judgments. This Tribunal in the case of CC CE Meerut-II Vs. HAS Chadha Exports 2012 (7) TMI 168 - CESTAT NEW DELHI has observed he wording of the Section 35A(3) is exactly similar to the wording of Section 128(2) of the Customs Act 1962 which deals with the power of the first appellate authority. The issue of interpretation of the aforesaid Section 128(2) in the context of the powers to remand came up for consideration of Supreme Court in the matter of Union of India v. Umesh Dhaimode 1997 (2) TMI 140 - SC ORDER wherein interpreting the aforesaid provision the Supreme Court held that aforesaid provision vested the appellate authority with power to remand the matter back. The impugned order is upheld and the Revenue s appeal is dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal question considered by the Tribunal was whether, after the amendment to Section 35A of the Central Excise Act, 1944 in 2001, the Commissioner (Appeals) retains the power to remand a matter to the adjudicating authority or is required to decide the appeal on merits without remand. The Revenue challenged the Commissioner (Appeals)'s order on the ground that the amended provision restricts the appellate authority from remanding the case and mandates a final decision by the Commissioner (Appeals) himself.

2. ISSUE-WISE DETAILED ANALYSIS

Issue: Power of Commissioner (Appeals) to remand the matter post-amendment of Section 35A(3) of the Central Excise Act, 1944.

Relevant Legal Framework and Precedents: The Tribunal examined the amended Section 35A(3), which states:

"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 annulling the decision or order appealed against."

The Tribunal noted that the language of Section 35A(3) is substantially similar to Section 128(2) of the Customs Act, 1962, which confers appellate powers on the first appellate authority in customs matters.

The Supreme Court's interpretation in Union of India v. Umesh Dhaimode (1998) was pivotal. The Court held that the appellate authority under Section 128(2) has the power to remand the matter to the lower authority for fresh decision, as an order of remand annuls the decision under appeal and falls within the power to pass such order as deemed fit.

Court's Interpretation and Reasoning: Applying the Supreme Court's reasoning to Section 35A(3), the Tribunal found no reason to exclude the power to remand from the Commissioner (Appeals). The phrase "pass such order, as he thinks just and proper" necessarily includes the power to set aside the impugned order and remit the matter for fresh adjudication. The Tribunal relied on a series of High Court judgments and its own previous ruling in CC&CE, Meerut-II Vs. HAS Chadha Exports, which affirmed this interpretation.

Key Evidence and Findings: The Tribunal observed the procedural history, where the Commissioner (Appeals) had remanded the issue of undervaluation to the adjudicating authority to re-work the differential duty. The Revenue's contention that such remand was impermissible post-amendment was found to be contrary to settled legal position.

Application of Law to Facts: The Tribunal applied the settled legal principle that the appellate authority has the discretion to remand the matter and found that the Commissioner (Appeals) acted within his jurisdiction by remanding the undervaluation issue for fresh adjudication. The Revenue's appeal challenging this power was without merit.

Treatment of Competing Arguments: The Revenue argued that the amendment to Section 35A(3) curtailed the power to remand and required the Commissioner (Appeals) to decide the appeal finally. The Tribunal rejected this argument, relying on authoritative judicial interpretations and the similarity of the provision to Section 128(2) of the Customs Act, which has been judicially held to include remand powers. The absence of any express exclusion of remand power in the amended provision further weighed against the Revenue's contention.

Conclusions: The Tribunal concluded that the Commissioner (Appeals) retains the power to remand matters to the adjudicating authority even after the 2001 amendment to Section 35A(3). The impugned order of remand was therefore valid, and the Revenue's appeal was dismissed.

3. SIGNIFICANT HOLDINGS

The Tribunal preserved the following crucial legal reasoning verbatim from the Supreme Court's decision in Union of India v. Umesh Dhaimode:

"2. As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision read together, necessarily imply that the appellate authority has the power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision."

The core principle established is that the power to remand is inherent in the appellate authority's power to "confirm, modify or annul" the impugned order and to pass such order as it thinks just and proper. This principle applies equally to the Commissioner (Appeals) under Section 35A(3) of the Central Excise Act, 1944.

The final determination was that the Commissioner (Appeals) did not exceed his jurisdiction by remanding the issue of undervaluation to the adjudicating authority, and the Revenue's appeal challenging this remand was dismissed accordingly.