COMMISSIONER OF C. EXCISE Vs. HPC ELECTRICALS LTD.

JUDGEMENT

(1.) The stay application and the appeal are taken up together for disposal. The issue relates to "Electrical Control Panels". The Respondent, M/s. HPC Electricals Ltd. have filed their written submissions. In the written submissions, they prayed for remanding the matter to the Commissioner (Appeals) for fresh re -adjudication of the case giving an opportunity to them to produce evidence at the time of personal hearing.

(2.) The Revenue has come up with this appeal against the remand order passed by the Commissioner (Appeals). It is stated by the Ld. DR that the Commissioner (Appeals) does not have power to remand the matter in terms of amended Section 35 and 35A of the Central Excise Act, 1944. He submits that the legislature did not intend to grant power to the Commissioner (Appeals) to remand to case for de novo consideration. the legislature intend the Commissioner (Appeals) himself to decide the matter on merits. It is submitted that the issue was taken up before the Larger Bench in case of Commissioner of Central Excise, Bhubaneshwar Vs. Oripol Industries reported in 2003 (155) ELT 278 (Tri -L.B.) wherein it has upheld the Revenue's contention that the commissioner (Appeals) has no power to remand the matter, vide amendment to section 35A of Central Excise Act, 1944 w.e.f. 11 -5 -2001 and the Commissioner (Appeals) himself to decide the matter. Ld. DR seeks remand the matter to the Commissioner (Appeals).

(3.) On a careful consideration of the submissions made by both the sides and on perusal of the impugned order, it is seen that the Commissioner (Appeals) has remanded the matter to the Original Authority for determination of assessable value and recalculation of duty in the matter, we notice that in terms of amended Section 35A of the Central Excise Act, 1944, the Commissioner (Appeals) has to perform the function himself and should not remand the matter to the Original Authority. The Commissioner (Appeals) has power to call for the records and to decide the case. Therefore, in terms of Larger Bench judgment, we set aside the impugned order and remand the matter to the Commissioner (Appeals) to decide the case by calling for records and after giving an opportunity of hearing to the Respondents. The stay application and the appeal are allowed by way of remand to the Commissioner (Appeals).