In a major relief to Adani Power Ltd, the Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), ruled that the Commissioner (Appeals) has power to remand matter to Adjudicating Authority u/s 35 A of Central Excise Act, 1962.
P. Ganesan, Superintendent (AR) who appeared on behalf of the Revenue reiterated the grounds of appeal. He submits that per the Section 35 A of Central Excise Act, 1944/ Section 128 A (3) of the Customs Act, 1962 with effect from the 11.05.2001 after amendment in the said section the Commissioner (Appeals) has no power to remand the matter to the Adjudicating Authority. Therefore, he erred in remanding the matter to the Adjudicating Authority.
Rahul Patel, Chartered Accountant who appeared on behalf of the Respondent submits that the issue is no longer res- integra as held by the Jurisdiction High Court in the case of Associated Hotels Limited, which was followed by this Tribunal in Final Order No. A/10860 -10864/2020 dated 18.03.2020 in the Respondent’s own case that the Commissioner (Appeals) indeed has power to remand the matter to the Adjudicating Authority. Therefore, the Revenue’s appeal is not maintainable.
The Gujarat High Court judgment in the case of Associated Hotels Limited, has also referred to the judgments of the Supreme Court in the case of Mil India Limited vs. CCE. Therefore, we are of the view that the learned Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority, therefore, on this count also, Revenue’s appeal does not sustain.
A Two-Member Bench of the Tribunal comprising observed that “In view of the above decision given by taking support of Gujarat High Court in the case of Associated Hotel Limited and Supreme Court Judgment in the case of Mil India Limited, the Commissioner (Appeals) indeed has power to remand the matter. Accordingly, there is no error in the impugned order to the extent the matter was remanded to the Adjudicating Authority.”
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