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TMI ID= 208583
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2012 (1) TMI 56 - CESTAT, NEW DELHI

CCE (ICD), New Delhi Versus M/s Infres Methodex Ltd.

Power of Commissioner(Appeals) to remand the matter u/s 122A of the Customs Act, 1962 - refund claim Held that:- The power to remand the matter is specifically withdrawn u/s 122(A) of the Customs Act, 1962 and it is also upheld in case of Mil India Ltd. vs. CCE (2007 - TMI - 1196 - Supreme Court Of India). Thus, the impugned order is not sustainable.

It is found that claim of refund was rejected by the adjudicating authority and documents produced before the Commissioner (Appeals) requires verification. Therefore, the matter is remanded to the adjudicating authority who will decide the matter afresh after taking into consideration the documents produced by the respondent. Appeal is disposed of by way of remand.

No.- Customs Appeal No. 398 of 2011

Dated.- January 4, 2012

Citations:

  1. MIL INDIA LTD. Versus COMMISSIONER OF C. EX., NOIDA - 2007 (3) TMI 8 - SUPREME COURT OF INDIA

Sh. S.S. Kang, J.

Rep. by Sh. P.K. Sharma, DR for the appellants.  

Rep. by Sh. Kamal Agarwal, C.A. for the respondent.  

Per: S.S. Kang:  

Heard both sides.  

2. Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) had remanded the matter to the adjudicating authority to decide the matter after affording an opportunity to the appellant for hearing. The contention of the revenue is that as per the amended provision of Section 122A of the Customs Act, 1962, the Commissioner has no power to remand the matter.  

3. The respondent submitted that the claim was rejected on the ground that relevant documents were not produced in support of the refund claim. All the documents were produced before the Commissioner (Appeals).  

4. I find that the Commissioner (Appeals) has remanded the matter to the adjudicating authority to decide the matter afresh after taking into consideration the documents produced by the respondent. The power to remand the matter is specifically withdrawn under Section 122(A) of the Customs Act, 1962 and it is also held by the Supreme Court in the case of Mil India Ltd. vs. CCE, Noida reported as 2007 (210) ELT 188. In view of the above decision of the Hon ble Supreme Court I find merit in the contention of the revenue that Commissioner (Appeals) as no power to remand the matter hence the impugned order is not sustainable in this regar,. hence set aside.  

5. I find that the refund claim filed by the respondent was rejected by the adjudicating authority and documents produced before the Commissioner (Appeals) requires verification. Therefore, the matter is remanded to the adjudicating authority who will decide the matter afresh after taking into consideration the documents produced by the respondent and after affording an opportunity of hearing to the respondent. The appeal is disposed of by way of remand and stay petition gets disposed of in the above terms.  

(Dictated and pronounced)  

 
 
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