Commissioner (A) Empowered to Remand Matter for Fresh Decision by Adjudicating Authority.

Court Name : CESTAT Ahmedabad

Parties : C.C.E. & S.T Vs Indian Oil Corporation Ltd

Decision Date : 21 June 2023

Judgement ref : Excise Appeal No. 12603 of 2013- DB

Customs, Excise & Service Tax Appellate Tribunal

West Zonal Bench At Ahmedabad

REGIONAL BENCH-COURT NO. 3

Excise Appeal No. 12603 of 2013- DB

(Arising out of OIA-83/2013/AHD-III/SKS/COMMR-A/AHD dated 01/05/2013 passed by Commissioner of Central Excise-AHMEDABAD-III)

C.C.E. & S.T.-Ahmedabad-iii

.....Appellant

Custom House... 2nd Floor,

Opp. Old Gujarat High Court,

Navrangpura, Ahmedabad, Gujarat - 380009

VERSUS

Indian Oil Corporation Ltd

......Respondent

loc Top, Taluka: Sidhpur, Sujanpur,

State Highway, Sidhpur, Patan, Gujarat

APPEARANCE:

Shri Prabhat K Rameshwaram, Additional Commissioner (AR)for the Appellant

None appeared for the Respondent

CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR

HON'BLE MEMBER (TECHNICAL), MR. C.L.MAHAR

Final Order No. A/ 11303 /2023

DATE OF HEARING: 23.02.2023

DATE OF DECISION: 21.06.2023

RAMESH NAIR

This appeal is directed against Order-in-Appeal passed by

Commissioner (Appeals) whereby the Learned Commissioner (Appeals)

remanded the matter to the adjudicating authority to examine the

documents on the issue of unjust enrichment and to decide refund matter a

fresh. In present appeal revenue has raised the only ground that

Commissioner (Appeals) has no power to remand the matter and he should

have decided the appeal before him finally.

2. When the matter was called out none appeared on behalf of the

Respondent. However, the Respondent sought for an adjournment on the

ground that on the identical issue the Revenue’s appeal is pending before

the Hon’ble Supreme Court. We do not find any substance in the reason

mentioned in the adjournment letter. Since the present matter is not on the

merit of the case but only on the power of remand of the Commissioner

(Appeals), therefore, we are of the view the appeal can be disposed of.

3. Shri Prabhat K Rameshwaram, Learned Additional Commissioner (AR)

appearing for the Revenue reiterates the grounds of appeal.

4. We have carefully considered the submission made by Learned AR

and perused the record. We find that the limited issue raised by the revenue

in their grounds of appeal is that the Commissioner (Appeals) instead of

remanding the matter should have decided finally as he has no power to

remand the matter. We find that firstly, the Learned Commissioner

(Appeals) has rightly remanded the appeal on the facts that the lower

authority has not appreciated the documentary evidence with regard to

unjust enrichment which needs to be re-considered by the Adjudicating

Authority. As regard the issue that whether the Learned Commissioner

(Appeals) has power to remand the matter, this issue is no longer res-

integra in the light of following judgments :-

Commissioner of Central Excise, Ahmedabad-I Vs. Medico Labs.-2004

(173) E.L.T. 117 (Guj.)

Commissioner of C. Ex. &Cus.,Bbsr- II Vs. Indian AluminiumCo.Ltd.

2002 (144) E.L.T. 97 (Tri. – Kolkata)

Union of India Vs. UmeshDhaimode – 1998 (98) E.L.T. 584 (S.C.)

4.1 In view of the above judgements, it is settled that Commissioner

(Appeals) has indeed power to remand the matter to Adjudicating Authority

to decide afresh. Moreover, by remanding the matter to the Adjudicating

Authority there is nothing prejudicial to the Revenue. For this reason also

there is no merit in the revenue’s appeal.

5. Accordingly, the impugned order is upheld. Revenue’s appeal is

dismissed. The Adjudicating Authority now should expeditiously pass de-

novo adjudicating order in the terms of the impugned order.

(Pronounced in the open court on 21.06.2023)

RAMESH NAIR

MEMBER (JUDICIAL)

C.L.MAHAR

MEMBER (TECHNICAL)