CGST & Excise, Howrah Versus M/s Ballyfab International Ltd.
Central Excise
2019 (1) TMI 55 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 28-12-2018
MA(COD)-76834/18 & CO-77270/18 & Ex. Appeal No.78122/18 – MO/76059/2018 & FO/A/77159/2018
Central Excise
SHRI P.K. CHOUDHARY, JUDICIAL MEMBER
Shri A. K. Biswas, Supdt. (A.R.) for the Revenue
Shri Shyamal Dey, Adv. for the Respondent (s)
ORDER
Per Shri P. K. Choudhary:
The present Miscellaneous Application has been filed by the Appellant seeking condonation of delay of 8 days in filing the instant appeal before this Tribunal.
2. In view of the submissions advanced by the ld.D.R. for the Revenue and the reasons explained in the Misc. Application, the delay in filing the appeal before this Tribunal, is condoned. The Miscellaneous Application (COD) is allowed.
3. With the consent of both sides, the present appeal filed by the Revenue is being taken up for final disposal.
4. This appeal is directed against
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impugned order should be set aside. In support of his submission, he relies on the decision of the Hon'ble Supreme Court in the case of MIL India Ltd. as reported in 2007 (210) ELT 188 (S.C.).
8. On the contrary, the ld.Advocate, has supported the impugned order. In support of his contention, he referred to the decision of the Hon'ble High Court of Gujarat in the case of CCEx., Ahmedabad I Vs. Medico Labs as reported in 2004 (173) ELT 117 (Guj.), wherein the Hon'ble High Court has held that even after the amendment of Section 35A (3), the Commissioner (Appeals) continues to have the power of remand. Accordingly, the ld.Advocate argued for dismissal of appeal.
9. Heard both sides and perused the appeal records.
10. I find that the issue is no more res-integra in view of the various decisions of the Hon'ble Supreme Court, Hon'ble High Courts and Tribunal. The similar issue on interpretation of the above provision, came up before the Hon'ble Supreme Court in the case of Union of India
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of MIL India Ltd. (supra) relied upon the ld.D.R. for the Revenue, I find that the issue before the Hon'ble Supreme Court in deciding the matter, was entirely different. However, while dealing with the said matter, the Hon'ble Supreme Court observed thus :
“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 powers of the Commissioner (Appeals) to remand matters back to the adjudicating authority for fresh consideration”.
I also find that similar view has been held by the Tribunal in the case of Commissioner of Central Excise, Meerut II Vs. Honda Seil Power Products Ltd. reported in 2013 (287) ELT 353 (Tri.-Del.). The relevant paragraphs are reproduced below :
“8. The aforesaid observation of the Supreme Court in the matter of MIL India Ltd. (supra) ar
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hout giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. This would create an anomaly and cause prejudice to the Revenue as it would bring an end to the litigation without adjudicating on the demand raised by the show cause notice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, we are of the view that power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944.”
11. In view of the above decisions, it is apparent that the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3). Accordingly, I do not find any merit in the appeal filed by
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