Case Law Details
BACHA MOTORS (P) LTD Vs CST, AHMEDABAD (CESTAT Ahemdabad)- It was also submitted that in several decisions of the Tribunal, reliance was placed on the decision of Honourable Supreme Court in the case of M/s MIL India Ltd. 2007 (210) ELT 188 (S.C.) = (2007-TIOL-30-SC-CX) to support the view that the Commissioner has no power to remand. After considering all these decisions, I find that in the case of M/s MIL India, the main issue before Honourable Supreme Court was entirely different and hence it was only observation during the course of discussion of the issue wherein Honourable Supreme Court mentioned about the amendment of the Section. It cannot be said that Honourable Supreme Court laid down the law in that case. Whereas in the case of M/s Medico Lab, Honourable Gujarat High Court was dealing with the issue of remand only and after considering the issue in detail, Honourable High Court had come to the conclusion that the Commissioner has powers to remand. In view of the fact that there are contradictory decisions of the Tribunal and other than the decision of Honourable High Court of Punjab & Haryana there is no other decision holding a contrary view to that of Honourable Gujarat High Court in Medico Lab, I conclude that as far as Gujarat State is concerned, the decision of Honourable Gujarat High Court is binding and accordingly Commissioner has power to remand the matter and therefore no interference is called for.
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IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT- II
Appeal No. ST/430 & 431/2009
Arising out of OIA No. 266/2009(STC)/HKJ/Commr(A)/Ahd, Dated: 09.10.09
Passed by Commissioner of Central Excise & Customs (Appeals), Ahmedabad
Date of Decision:14.05.2010
M/s BACHA MOTORS (P) LTD
Vs
CST, AHMEDABAD
Appellant Rep by: Shri S J Vyas, Adv.
Respondent Rep by: Shri Avinash Thete, SDR.
CORAM:B.S.V. Murthy, Member (T)
ORDER No. A/500-501/WZB/AHD/2010
Per: B S V Murthy:
This appeal involves a very short issue as to whether the Commissioner (Appeals) has powers to remand the matter back to the original adjudicating authority after amendment under Section 35A(3) of Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11.05.2001.
2. Learned advocate submits that the Commissioner does not have power to remand after amendment to Section 35A(3) of Central Excise Act, 1944 and therefore seeks remand the matter to Commissioner to hear the matter afresh and decide the issue in respect of remand. For this purpose, he relies upon the decision of Hon’ble High Court of Gujarat in the case of M/s Medico Labs 2004 (173) ELT 117 (Guj.) = (2004-TIOL-39-HC-GUJ-CX). He fairly agrees and in fact submits that several other decisions of the Tribunal wherein a view has been taken that the Commissioner (Appeals) has no powers to remand.
3. I have considered the submissions made by both sides. As rightly pointed out by the learned advocate, there are contradictory decisions as regards power of Commissioner (Appeals) to remand the matter. In the case of M/s Mongia Hitech Pvt.Ltd. 2010 (251) ELT 85 (Tri-Kolkata) and in the case of M/s Oripol Industries 2003 (155) ELT 278 (T-LB) = (2003-TIOL-09-CESTAT-DEL-LB), it was held that the Commissioner (Appeals) has no powers to remand. However, in the case of M/s Garlon Polyfab India Ltd. 2008 (222) ELT 128 (Tri-Del.), a contrary view was taken and it was held that the Commissioner has power to remand the matter. In the case of M/s Oripol Industries, even though it was observed that the Commissioner (Appeals) has no power to remand the matter, yet the matter was sent back to the original adjudicating authority since the Tribunal found no valid reason to interfere with the view of learned Commissioner (Appeals) in that case, treating the matter fit for remand. Further, Honourable High Court of Punjab & Haryana in the case of B.C. Kataria 2008 (221) ELT 508 (P&H) took a view that the Commissioner has no power to remand. In that case Honourable High Court had considered the view taken by Honourable Gujarat High Court in Medico Lab’s case.
4. It was also submitted that in several decisions of the Tribunal, reliance was placed on the decision of Honourable Supreme Court in the case of M/s MIL India Ltd. 2007 (210) ELT 188 (S.C.) = (2007-TIOL-30-SC-CX) to support the view that the Commissioner has no power to remand. After considering all these decisions, I find that in the case of M/s MIL India, the main issue before Honourable Supreme Court was entirely different and hence it was only observation during the course of discussion of the issue wherein Honourable Supreme Court mentioned about the amendment of the Section. It cannot be said that Honourable Supreme Court laid down the law in that case. Whereas in the case of M/s Medico Lab, Honourable Gujarat High Court was dealing with the issue of remand only and after considering the issue in detail, Honourable High Court had come to the conclusion that the Commissioner has powers to remand. In view of the fact that there are contradictory decisions of the Tribunal and other than the decision of Honourable High Court of Punjab & Haryana there is no other decision holding a contrary view to that of Honourable Gujarat High Court in Medico Lab, I conclude that as far as Gujarat State is concerned, the decision of Honourable Gujarat High Court is binding and accordingly Commissioner has power to remand the matter and therefore no interference is called for.
5. Accordingly, the appeals filed by the appellant are rejected.
(Dictated & Pronounced in Court)
It is well settled issue that if the facts narrated are not sufficient to decide the issue the proper course is only to remand the matter. An appellate authority can not be made an assessing or adjudicating officer to collect the facts and then give verdict, it is ridiculous, then what is the purpose of assessing authority or adjudicating authority. It gives only a room for litigation that the appellate authority collected facts which are either not correct or sufficient opportunity was not there for authority below etc., etc., . Hence, remand in such cases is proper.