TMI Blog2017 (8) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... er side, the Writ Petitions themselves are taken up for final disposal. 2. The order impugned in all the three writ petitions are orders in appeal passed by the Commissioner of Central Excise (Appeals) under Section 85 of the Finance Act 1994. The Commissioner (Appeals) has confirmed the demand of tax, interest and penalty as made by the second respondent, viz., the Joint Commissioner of Central Excise and remanded the matter to the second respondent for the limited purpose of examining the threshold limit and grant appropriate relief and directing the petitioner to pay duty and penalty on the revised amount of total tax payable for the relevant assessment year, after re-quantifying the amount for the said year. 3. Admittedly, the petitioner has an effective alternative remedy of appeal before the Customs Excise and Service Tax Appellate Tribunal (for short CESTAT ) as prescribed in the Finance Act, 1994. This remedy is sought to be bypassed by the petitioner by contending that the first respondent has no power to remand the matter to the adjudicating authority, in the light of the amendment to Section 35-A of the Central Excise Act, which was amended by Finance Act 2001 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to 11.05.2001 and pointed out that Sub-section (3) to Section 35-A of the Central Excise Act, provided for a power to remand the matter to the adjudicating authority and this power has been specifically deleted when Sub-section (3) was substituted by Finance Act 2001. To buttress the submissions, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in MIL India Limited v. Commissioner of C.Ex., Noida [2007 (210) ELT.188 (SC)]. 9. Further, the learned counsel for the petitioner referred to the circular issued by the CBEC dated 25.07.2008, i.e., after the decision in MIL India Limited (supra), and submitted that the circular specifically refers to Section 85 of the Finance Act, in more than one place and therefore, the Board having directed the authorities to take note of the decision of the Hon'ble Supreme Court, the first respondent could not have remanded the matter to the second respondent - Assessing officer. Reliance was also placed on the circular dated 18.02.2010, which reiterates the circular dated 25.07.2008. 10. The learned Counsel further submitted that the concept of the under lying principle, as canvassed by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, learned counsel for the petitioners and Mrs. R.Hemalatha, learned senior standing counsel for the respondents, and perused the materials placed on record. 16. Before I examine the contentions raised by both the learned counsel, it would be necessary to refer the following provisions of the Finance Act, namely, Sections 85 and 86, which reads as follows: 85. Appeals to the Commissioner of Central Excise (Appeals): 1[(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).] (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of the such adjudicating authority, relating to service tax, interest or penalty under this Chapter, made before the date on which the Finance Bill, 2012 receives the assent of the President: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) The Commissioner (Appeals) shall give an opportunity to the appellant to be heard, if he so desires. (2) The Commissioner (Appeals) may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if the [Commissioner (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not willful or unreasonable. (3) 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: 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 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 erron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hear and decide every appeal within a period of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Commissioner of Central Excise and the other party to the appeal. (4) Save as provided in section 35G or (4) section 35L, orders passed by the Appellate Tribunal on appeal shall be final. 18. The argument of the learned counsel for the petitioner is that prior to 2001, Section 35-A(3) specifically provided that the Commissioner (Appeals) may pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority for such directions for a fresh adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said provisions would include the power to remand. Therefore, the argument advanced by the learned counsel for the petitioner by reading into Sub-section (5) of Section 85, the provisions of Section 35- A(3) is an incorrect interpretation. 22. Further, in the case of Medico Labs, the Division Bench of the Gujarat High Court, while considering the said provision has pointed out that the power to annul a decision, necessarily, includes remand and even after the amendment to Section 85-A of the Central Excise Act, the appellate Authority has power to set aside the decision. Though, this decision was rendered prior to the decision of the Hon'ble Supreme Court in MIL India Limited, in the preceding paragraph, I have assigned reasons as to why the contention advanced by the petitioner would not be applicable to the case arising under Section 85 of the Finance Act. 23. In view of the above reasons, I have no hesitation to hold that the first respondent while exercising powers under Section 85 (4) of the Finance Act has powers to pass orders as he thinks fit and such orders will also include an order of remand and amendment to Section 35-A (3) with effect from 11.05.2001 do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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