Full Judgment
1.2. The matter is before the Tribunal for the second time. The Tribunal vide their order No. C-II/2002/02/WZB dt. 18/6/2002 allowed the appeal by way of remand with the direction that "the Commissioner shall decide upon the notice in accordance with law, after considering the submissions that the appellant may make." a. The Collector vide his order dt.23/3/1993 confirmed demand of duty amounting to Rs. 5,72,852=29 as per the proposal contained in a show cause notice dated 21.3.91 demanding duty from the appellant on solvent CIX and xylene which were received by the appellant without payment of duty in terms of Notification No. 76/67. The demand was confirmed on the ground that the materials have been diverted with out having been used for the intended purpose. Penalties were also imposed.
b. On appeal by the party, the Tribunal set aside the order of the collector and directed fresh consideration by the Commissioner (the changed designation of the collector) in the light of various directions/observations of the Tribunal in the said order.
c. In pursuance of the Tribunal's order, de-novo adjudication was taken up. In the meanwhile CBEC vide circular No. 328/44/97-CE dt.
13.8.97 modified the monetary limit and thus enhancing the powers of the adjudicating authorities below the rank of commissioners and therefore as per the duty involvement the present case was within the powers of Addl. Commissioner.
d. There was specific objection by the assessee that Addl.
Commissioner was not empowered to adjudicate the case in the de novo proceedings, when the issue was originally decided by the Collector.
After overlooking the objection, the Additional Commissioner went ahead with the adjudication proceedings and vide his order dt.
6/6/2003 confirmed the demand of duty of Rs. 5,72,852.29 along with interest. He also imposed a penalty of Rs. 3 lakhs on the firm and separately imposed penalty of Rs. 1 lakh on the proprietor.
e. Appellant filed an appeal with the Commissioner (Appeals), who has concurred with the Original Authority.
3. Ld. Advocate for the appellant raised a preliminary objection that the order of the Tribunal dt. 18/6/2002 specifically remanded the matter to the Commissioner to decide the notice. Therefore decision by a lower authority is not in order.
4. Ld. SDR submits that the Addl. Commissioner adjudicated the matter as during the relevant time the powers of adjudication by the Addl.
Commissioner has been enhanced by the CBEC. Though adjudication was done by the Addl. Commissioner, on appeal by the party, the matter has also been considered at the level of Commissioner (in this case Commissioner (Appeals)) and the decision of the Original Authority has been endorsed. He relies on the decision of the Hon'ble High Court of Madras in the case of ABI International v. Addl.CC (Imports), Chennai to support his contention "de-novo enquiry means that entire trial should be held for second time or new hearing or hearing of the second time should be held in the same manner but will not mean by the same official." 5. We have carefully considered the submissions from both sides. The appellant's preliminary objection is that the matter was specifically remanded to the Commissioner for fresh decision and as such, it was not open to the Addl. Commissioner to decide the issue for define of the Tribunal's order. We find that when the matter was remanded by Tribunal to Commissioner vide its earlier order inasmuch as the Commissioner was the Adjudicating Authority passing the order impugned before the Tribunal. As such when the remand was made to Commissioner, it meant that the same was made to the Adjudicating Authority. If in the meanwhile the monetary powers to adjudicate had undergone a change and in accordance with those powers Addl. Commissioner becomes empowered to decide the matter, we do not find any reasons for the appellant to have any grievance. It was not a specific remand to Commissioner, but was a remand to the Adjudicating Authority, whom so ever had the powers to adjudicate. It is not the appellant's case that at the time of adjudication by the Addl. Commissioner, he was not having the power to adjudicate. The matter has travelled through Commissioner (Appeals) before us and as such the appellants have also been heard by the said appellate authority, who is of the level of Commissioner. As such, we find that there can be no serious grievance on part of the appellant on that count.
6. Taking reverse case whether the monetary powers of Adjudicating Authority are lowered instead of being enhanced and a particular Adjudicating Authority to whom the matter stands remanded does not have powers to deal with the same and the matter is re-adjudicated by the higher officer, who is then having monetary powers, it cannot be said that the Tribunal's directions to re-decide the matter by a specific authority stands defied. We also note that the Hon'ble Madras High Court's decision in the case of ABI International relied upon by the ld. SDR is on at all four corners with the present dispute. In that case also the matter was remanded by Tribunal to Commissioner and was decided by Addl. Commissioner in de-novo proceedings. The Hon'ble Madras High Court observed that such decision in de-novo proceedings by the Addl. Commissioner, when the appeal was specifically remanded to Commissioner was within the framework of the law and within his jurisdiction.
7. As such by adopting the ratio of the above referred decision, we do not find any merits in the preliminary objection raised by the appellant and fix the appeal for final decision on merits on 12/2/2008.