Cce, Panchkula vs Goel International Pvt.Ltd

(Arising out of OIA No. 181/CE/DLH/09 dt.15.9.09 and OIA 187/CE/DLH/09 dt.22.9.09 passed by CCE (Appeals), Delhi-II)

CCE, Panchkula Appellants

Vs.

Goel International Pvt.Ltd. Respondent

Chaman Lal Setia Exports Ltd.

Appearance:

Appellant: Shri D.V.Nagvenkar, AR

Respondent: Shri Deepak Gupta, Advocate

Respondent(2):Shri Gautum Chug, Advocate

HonbleMr.P.K.Das, Member (Judicial)

HonbleMr.P.S.Pruthi, Member (Technical)

1.

Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No

3. Whether their Lordships wish to see the fair copy of the order? seen

4. Whether order is to be circulated to the Department Authorities? Yes

Coram:Honble Mr.P.K.Das, Member (Judicial)

HonbleMr.P.S.Pruthi, Member(Technical)

Date of Hearing/decision: 22.01.2015

FINAL ORDER NO.50733-50734/2015

PER: P.S.PRUTHI

In the appeals, the Revenue has challenged the Order of the Commissioner (Appeals) remanding the respective cases back to the adjudicating authority for de novo adjudication.

2. We find that the Revenue relied on the provision of Central Excise law in which the power of remand by the Commissioner (Appeals) was taken away by the amendment in section 35A(3). Section 35A(3) of Central Excise Act, 1944 is reproduced as under:-

(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 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.

Thus it is seen that section 35A(3) specifies that the Commissioner (Appeals) can pass order confirming, modifying or annulling decision or order appealed against. On the other hand, relevant section 85 (4) of Finance Act, 1994 which reads as under:-

The Commissioner of Central Excise (Appeals) shall hear and determine the appeals and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty 

3. It is clear that under section 85(4) the language is used in a wider context, it does not restrict the type of order which the Commissioner (Appeals) may pass. Rather it states that the Commissioner (Appeals) may pass such order as he thinks fit. Thus scope of remand is included in the provision of laid down in the section 85(4). Accordingly the Commissioner (Appeals) has the power to remand the case under section 85(4). Reliance is placed on the case of CST, Delhi vs. World Vision-2010 (20) STR 49 (Tri.-Del.)

4. In view of the above, the appeals are dismissed.

(Pronounced in the court)

(P.S.PRUTHI) (P.K.DAS)

MEMBER (TECHNICAL) MEMBER(JUDICIAL)

mk

1