CCE Vs. ORIPOL INDUSTRIES, UTKAL

JUDGEMENT

(1.) The question referred for consideration by the Larger Bench is whether Commissioner (Appeal) does have jurisdiction to remand the appeal before him after the amendment to Section 35 -A by the Finance Act, 2001 w.e.f. 11.5.2001. Reference was necessitated in view of difference of opinion between two Benches of this Tribunal on the issue. A learned Single Member of East regional Bench took the view in CCE and Customs Bhubaneshwar v. Indian Aluminium Co. 2002(50) RLT 92 that even after the amendment the Commissioner (Appeals) has inherent power to remand the matter to the original adjudicating authority for de nove consideration. The Referring Bench agreed with the above view/ But it was noted that a Division Bench of Bombay of this Tribunal has taken a different view in Vipor Chemicals Pvt. Ltd. v. Commissioner of Customs, Mumbai 2002(144) ELT 385. It was held therein that after the amendment w.e.f. 11.5.2001 the Commissioner (Appeals) will have no power of remand.

(2.) In CCE and Customs Bhubaneshwar v. Indian Aluminium Co. the learned Single Member had placed reliance on two decisions of the Andhra Pradesh High Court in Thimmasamudram Tobacco Co. v. Assistant Collector of Central Excise AIR 1961 (Andhra Pradesh) 324 and Narsingha State Transport Authority 1958 Andhra Law Time 627 along with a decision of the Supreme Cout in UOI v. Umesh Dhaimode 1998(98) ELT before introducing specific provision giving power of remand in the year 1982 can be given to the present section after the amendment under the Finance Act 2001 which came into force on 11.5.2001. On the other hand, the learned DR would contend that when a specific power given under the statute was taken away, by way of amendment in Finance Act 4/2001 one cannot go back to the meaning given to Section 35 of the Central Excise or 128(2) of the Customs Act by the Court as it would be against the legislature's intention. In support of the above contention he placed reliance on Notes on Clauses on the amendment to Section 35A of the Central Excise Act and 128 -A of the Customs Act in the Finance Bill of 2001. He submits that the Notes on Clauses would clearly show that the Legislature intended to take away power of remand from the Commissioner (Appeals).

(3.) We will now refer to the legislative history of the appellate power of the Commissioner (Appeal). Section 35(1) as it stood before 11.10.82 contained the provisions regarding the appellate power. It reads as follows: -