TMI Blog2023 (10) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the refund claims. A question of the power to remand lies at the heart of the appeal. Delay in a decision on this issue does not help even the respondent in settling his claims. The matter can move forward on merits only when placed before the proper authority for consideration. Adjournments will only delay statutory relief. Hence the matter is decided based on the legal position that has evolved and the issues available on record, as applicable. Having original powers in matters related to assessment as per the statute, it was expected of the lower authority to examine and dispose of the matter on merits. The Commissioner (Appeals) was not vested with any powers to remand a matter under consideration with a direction for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e import of various furniture vide 8 Bills of Entry under Notification No. 102/2007-Cus. dated 14.09.2007, as amended by Notification No. 93/2008 dated 01.08.2008. The details of the said claims are as under: - Sl. No. Date of filing of claim Amount (in Rs.) 1. 08.03.2010 69,190/- 2. 29.04.2010 1,19,892/- 3. 03.05.2010 98,410/- 4. 31.05.2010 12,95,714/- 5. 28.06.2010 12,83,714/- TOTAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a general observation and no specific discrepancy has been pointed out. Aggrieved by such order, the Revenue has filed the present appeals before this forum. 5. Shri Harendra Singh Pal, Ld. Authorized Representative (Assistant Commissioner) appeared for the appellant Revenue. The respondent was not represented, either in person or by counsel. However, since several adjournments had already been granted on the ground of non-appearance of respondent, the matter has been taken up for disposal on merits after hearing the Ld. Departmental Representative. 6. The Ld. AR stated that the Commissioner (Appeals) erred in directing the Department to review the issue once again and file fresh appeal within one month from the date of receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the proper authority for consideration. Adjournments will only delay statutory relief. Hence the matter is decided based on the legal position that has evolved and the issues available on record, as applicable. 8. Revenue has assailed the Commissioner (Appeals) order as there is no provision for the Commissioner (Appeals) to remand a matter under consideration to be reviewed once again and to file a fresh appeal within one month from the date of receipt of the order as per the Customs Act, 1962. The direction of the Commissioner (Appeals) in the impugned order are averred by Revenue to be also contrary to the observations of the Hon ble Apex Court against the powers of Commissioner (Appeals) to remand a matter, in the case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88(SC)] has observed that in fact, the power of remand by the Commissioner(Appeals) 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 power of the Commissioner(A) to remand matters back to the adjudicating authority for fresh consideration. The said decision of the Supreme Court was brought to the notice of CESTAT in the case of CCE, Jallandhar Vs. Hawkins Cookers Ltd. reported in 2007(8)RLT.7, but the Tribunal held that the Supreme Court in the said case had only noted the provisions of amended law whereas the specific issue whether Commissioner(A) has power to rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the adjudicating authority and the order of Commissioner (A) could also be treated as an order of assessment . Board instructions dated 25.7.2008 (copy enclosed) may be referred in this regard. (emphasis added) The legal position has been brought out in the Boards circular. As clarified by the Apex Court the Commissioner (Appeals) continues to exercise the power of adjudicating authority in the matter of assessment. Hence having original powers in matters related to assessment as per the statute, it was expected of the lower authority to examine and dispose of the matter on merits. The Commissioner (Appeals) was not vested with any powers to remand a matter under consideration with a direction for the issue to be reviewed once aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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