On such occasions, the appellate authority could as well freshly consider those cases and give a final decision. But often that may not be possible since the matter may be one of great detail or needs enquiry in a market or looking into the books of accounts which cannot be done at the higher level. So the power of remand by Court and Tribunal has not been an issue since they do not resort to it far too often in any case.
The Commissioner(Appeal), however, have been unfortunately remanding too many cases back to the adjudicating authorities more for showing easy disposal. In 1980, the power of remand was specifically given in the Section 128A(3) of the Customs Act. For the next 21 years, the number of remands became scandalously high.
In 2001, therefore, Section 128A(3) of Customs and Section 35A(3) of Excise was amended to delete the specific power of remand.
Now the wording in the amended section permits the Commissioner(Appeal) the power for "confirming, modifying or annulling".
However, the Tribunals and the Courts started interpreting this amendment in a different light. The Supreme Court gave a decision on February, 13, 1997 in the case of Union of India vs Umesh Dhaimode[1] saying that the Commissioner Appeal has the power to remand. However, this was before the amendment in 2001. Still the Gujarat High Court held in the case of CCE, Ahmedanad vs Medico Labs[2] that the Commissioner(A) still has the power to remand.
This was contradicted by the Punjab & Haryana High Court in the case of CCE, Jalandhar vs BC Kataria[3] holding that once the power has specifically been withdrawn the intention of the legislature is very clear that there is no power.
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The P&H High Court went in this case by the "expression of necessary intendment" of the Legislature in deleting the specific provision for remand.
The Court further observed that the previous Supreme Court judgement was given before the power of remand was taken away by amendment.
When two High Courts give opposite judgements, the Tribunals can follow any one of them. That is what has happened. Several Tribunals have given judgements opposite to each other.
And similarly some Commissioners(Appeal) are still remanding cases and some are not. This is not a healthy situation.My definite view is that once the Parliament has withdrawn the power of remand of Commissioner(Appeal), the intention is clear that there is no power of remand.
Circuitous interpretation given by some judgements that the power still exists is against the well established principle of interpretation that intendment in law has to be given respect when there is no doubt about the intendment[4]. The final solution to the present problem of continuing remand lies in amending the Section 35A(3) of the Excise Act and 128A(3) of the Customs Act by specifically adding an explanation that the power of Commissioner(Appeal) does not include the power of remand.
In the meantime, the Departmental files when being forwarded to the Commissioner(Appeal) should contain the request for not remanding the case. This is necessary because no binding circular can be issued by the Board[5] to the Commissioner(Appeal).
[1] MANU/SC/1463/1997 [2] MANU/GJ/0635/2004 [3] MANU/PH/0312/2007 [4] Collector of Central Excise v. Neoli Sugar Factory