Commissioner Of Central Excise, ... vs M/S Pahalwan Chhap Tambaku

Arising out of O/A No.83/Kol.III/07 dated 31.08.2007 passed by Commissioner of Central Excise(Appeals),Kolkata III.

For approval and signature:

DR. D. M. MISRA, HONBLE JUDICIAL MEMBER

1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :

2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :

3. Whether His Lordship wishes to see the fair copy of the Order? :

4. Whether Order is to be circulated to the Departmental Authorities? :

Commissioner of Central Excise, Kol.III APPELLANT(S) VERSUS

M/s Pahalwan Chhap Tambaku RESPONDENT (S)

APPEARANCE

Shri A. K. Biswas, Supdt. (A.R.) for the Department None for the Respondent (s)

CORAM:

DR. D. M. MISRA, HONBLE JUDICIAL MEMBER

DATE OF HEARING & PRONOUNCEMENT : 06. 02. 2015

ORDER NO.FO/A/75034/2015

Per Dr. D. M. Misra :

None present for the Respondent in spite of the matter listed for hearings on 25.10.2012, 22.03.2013, 25.04.2013, 02.01.2015 and today, i.e. 06.02.2015. Heard the ld.A.R. for the Revenue.

2. This appeal is directed against Order-in-Appeal No. 83/Kol.III/2007 dated 31.08.2007 passed by Commissioner of Central Excise(Appeals), Kolkata III.

3. The ld.A.R. for the Revenue, assailing the Order-in-Appeal, has submitted that the ld. Commissioner (Appeals) has remanded the case to the Adjudicating Authority with a liberty to conduct further investigation and to issue fresh show-cause notice fixing liability on both the firms separately. He submits that the ld.Commissioner (Appeals) has neither the authority to remand the case nor to issue direction to initiate fresh investigation and consequently, fresh show-cause notice. It is his submission that once the show-cause notice has been issued based on evidences, the same is required to be heard by the adjudicating authority and the appellate authority and be decided/ordered accordingly. However, he fairly accepts that since the evidences were not properly analyzed, the case needs to be re-adjudicated. He has no objection in remanding the case to the adjudicating authority.

4. Heard both sides and perused the records. I find that the ld.Commissioner (Appeals) has recorded his findings and observed as under :

I, therefore, feel the liability of duty on both firms needs to be arrived after conducting further investigation. The dept. is at liberty to conduct further investigation and to issue fresh show-cause notices fixing liability on both firms separately. Accordingly, I remand the case to the lower authority for further investigations and decision afresh. The appeal is accordingly allowed by way of remand. I find that the Revenue has come in appeal objecting the direction of the ld.Commissioner (Appeals) for initiation of fresh investigation and issuance of show-cause notice. I find that it is a classic and unique case where the Department has filed appeal against their own interest, but in the interest of justice. I am of the view that the ld.Commissioner (Appeals) ought not have stepped beyond the brief assigned to him for decision as the first Appellate Authority. In the result, the impugned order-in-appeal, is set aside and in the interest of justice, the matter is remanded to the adjudicating authority for analyzing the evidences on record in the light of the issues/allegations raised in the show-cause notice without conducting fresh investigation or issuing fresh show-cause notice as directed by the ld.Commissioner (Appeals).

5. Revenues appeal is allowed by way of remand on the above terms.

(Dictated and pronounced in the open Court) Sd/ (DR. D.M.MISRA) MEMBER (JUDICIAL) mm

3 Ex. Appeal No.619/07