Whether Commissioner (Appeals) has power to remand?

PJ/CASE LAW/2014-15/2512

Case:- COMMISSIONER OF CUSTOMS, TUTICORIN VS CHAMAN LAL BHAMBRI

Citation:-2015-TIOL-140-CESTAT-MAD

Brief facts:- The appeals relate to import of Second-Hand Off-set Printing Machine by M/s. Man Bhavan Arts vide Bill of Entry No.329181, dated 13.09.2003. The Adjudicating authority rejected the declared value and enhanced value and confirmed the demand of differential duty along with interest and imposed penalty on M/s. Man Bhavan Arts. He also imposed penalties on Shri Chaman Lal Bhambri and Shri Rajindar Jain on the ground that they are co-conspirator and well aware of undervaluation of goods. All the notices filed appeals before the Commissioner (Appeals). By Order-in-Appeal No.38/2010, dated 16.09.2010 and Order-in-Appeal No.50/2010, dated 12.10.2010 in the appeal of M/s. Man Bhavan Arts and Shri Rajindar Jain respectively, the Commissioner (Appeals) set aside the Adjudication order and remanded the matter to the Adjudicating authority to grant a fresh personal hearing after returning the ineligible documents and supplying legible copies of the relied upon documents and to give them proper opportunity to file their final reply and decide the case afresh as per law. Revenue filed the appeals before the Tribunal against the order of Commissioner (Appeals) in respect of M/s. Man Bhavan Arts and Shri Rajindar Jain. But, in the appeal of Shri Chaman Lal Bhambri, the Commissioner (Appeals) rejected the appeal and upheld the Adjudication Order against which the present appeal is filed. All the three appeals were filed against three separate impugned orders of Commissioner (Appeals), and all are arising out of a common Adjudication Order No.12/2010, dated 30.03.2010. Hence, all are taken up together for hearing.

Appellant’s contentions:-The learned Authorised Representative on behalf of the Revenue reiterates the grounds of appeal. She submits that the Commissioner (Appeals) has no power to remand the matter.

Reasoning of judgment:- After hearing the contention of the appellant i.e. revenue they find that the Hon'ble Supreme Court, High Court and the Tribunal by various decisions held that the Appellate Authority have powers to pass such order as it may deem fit and proper confirming, modifying or annulling the decision appealed against. Such power would extend assessment, waiving or remission against the other under appeal. The CESTAT also place some references of the cases as under:

(i) Union of India Vs Umesh Dhaimode reported in 1998 (98) E.L.T.584 (S.C.) = 2002-TIOL-415-SC-CUS.

(ii) Commissioner of Central Excise, Ahmedabad-I Vs Medico Labs reported in 2004 (173) E.L.T.117 (Guj.) = 2004-TIOL-39-HC-AHM-CX.

(iii) Commissioner of Central Excise, Pondicherry Vs Amaravathy Chemicals Ltd. reported in 2010 (252) E.L.T. 228 (Tri.-Chennai) .

(iv) Commissioner of Central Excise, Meerut-II Vs Honda Seil Power Product Ltd. reported in 2013 (287) E.L.T.353 (Tri.-Del.) = 2012-TIOL-2052-CESTAT-DEL.

(v) Commissioner of Central Excise, Delhi-I Vs Vikram Dhawan reported in 2012 (284) E.L.T. 554 (Tri.-Del.) .

Hence they do not find any reason to interfere with the order of the Commissioner (Appeals) against which appeals filed by the Revenue. As the Commissioner (Appeals) by the earlier Order-in-Appeal set aside the Adjudication order and, therefore, the impugned order passed by Commissioner (Appeals) against Shri Chaman Lal Bhambri cannot be sustained. Accordingly, the impugned Order-in-Appeal against which the appeal filed by Shri Chaman Lal Bhambri is liable to be set aside and remanded to the Adjudicating authority.

In view of the above discussions, they dismiss the appeals filed by the Revenue. The appeal filed by Chaman Lal Bhambri is allowed by way of remand to the Adjudicating authority. As the matter relates to 2003 imports, they also directed the Adjudicating authority to decide these matters as early as possible following the direction of the learned Commissioner (Appeals) in the case of M/s. Man Bhavan Arts and Shri Rajindar Jain. Stay application filed by Shri Chaman Lal Bhambri was also disposed of.

Decision:- Appeals allowed by way of remand.

Comment:-The crux of the case is that Commissioners(Appeals) as an appellate Authority have the powers to pass such order as it may deem fit and proper confirming, modifying or annulling the decision appealed against the orders of adjudication authority. Such power would definitely include the power of remand and the same is also backed by number of decisions given by the Tribunal.

Prepared by:- Kushal Shah

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PJ/CASE LAW/2014-15/2512

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