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Commissioner, Central Excise & Service ... vs M/S Savita Oil Technologies Ltd

Customs Excise and Service Tax Appellate Tribunal16 July 2015

Ratio decidendi

The rule this decision rests on

The Commissioner (Appeals) under the Central Excise Act, 1944 retains the power to remand a case to the adjudicating authority, notwithstanding the amendment to Section 35A(3) of that Act, as this question has been settled by the High Court's decision in CCE Ahmedabad-I v. Medico Labs, which the Tribunal in Bacha Motors (P) Ltd v. CST Ahmedabad followed; the Tribunal therefore treats the point as no longer res integra and rejects the Revenue's appeal on that basis.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

In The Customs, Excise & Service Tax Appellate TribunalWest Zonal Bench At Ahmedabad

Appeal No.E/10773/2013-SM; E/CROSS/10972/2013 [Arising out of OIA No.SRP/282/VAPI/2012-13, dt.28.02.2013, passed by Commissioner (Appeals), Central Excise & Customs, Vapi]

Commissioner, Central Excise & Service Tax, Vapi Appellant

Vs

M/s Savita Oil Technologies Ltd. Respondent

Represented by:

For Appellant: Shri L. Tendupatra, Authorised Representative For Respondent: Shri Jagdish Surti, Advocate

For approval and signature:

Honble Mr. H.K. Thakur, Member (Technical)

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

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

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

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL)

Date of Hearing/Decision:16.07.2015

Order No. A/11011 / 2015, dt.16.07.2015

Per: H.K. Thakur

This appeal has been filed by the Revenue on the grounds that the Commissioner (Appeals) does not have the power to remand as per amended Section 35A(3) of Central Excise Act, 1944.

2. Shri L. Tendupatra (AR) appearing on behalf of the Revenue argued that the Commissioner (Appeals) does not have the power to remand and, therefore, the order passed by First Appellate Authority should be set aside.

3. Shri Jagdish Surti (Advocate) appearing on behalf of the Respondent relied upon the case law in the case of Bacha Motors (P) Ltd Vs CST Ahmedabad [2010 (255) ELT 530 (Tri-Ahmd)], under which it is held that the Commissioner (Appeals) has the power to remand.

4. Heard both the sides and perused the case records. The issue involved in this case is regarding the power of Commissioner (Appeals) to remand the case to the Adjudicating authority. This Bench in the case of Bacha Motors (P) Ltd (supra) has held that the Commissioner (Appeals) has such power to remand. In this judgment of Bacha Motors (P) Ltd, the Bench has relied upon the judgment of Hon'ble Gujarat High Court in the case of CCE Ahmedabad-I Vs Medico Labs [2004 (173) ELT 117 (Guj.). In this case of Medico Labs, the Hon'ble High Court had held that even after the amendment of Section 35A(3) of Central Excise Act, 1944, the Commissioner (Appeals) continue to have power of remand. As the issue is no more res integra, therefore, the appeal filed by the Revenue is rejected.

5. The cross objection filed the Respondent also gets disposed of.

(Dictated and pronounced in Court)

(H.K. Thakur) Member (Technical)

cbb 2

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