Tribunal has with conscious mind remanded case to Adjudicating authority - no error committed by Bench - ROM application by Revenue dismissed
WHILE reporting the case in DDT 1968, we had mentioned thus -
"Case for Commissioner(A) to be given power for restoration of appeal
The CESTAT is clothed with express powers under rule 41 of the CESTAT (Procedure) Rules, 1982 to restore appeals that were dismissed inter alia on ground of non-appearance or on account of non-compliance of the order of pre-deposit.
The said rule 41 is reproduced below -
“RULE 41. Orders and directions in certain cases. - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice.”
Incidentally, the Commissioner(Appeals) does not have this power and hence if an appeal is dismissed by the lower appellate authority on the aforesaid grounds an appellant has to file an appeal before the CESTAT and wait for a decision.
In the present case, the appellant complied with the Stay order passed by the Commissioner(A) inasmuch as he paid the pre-deposit amount as ordered but the same was not communicated to the Commissioner (Appeals). Resultantly, the lower appellate authority dismissed their appeal. An application moved for restoration of the appeal was also dismissed citing that there were no powers available to the Commissioner (A).
Before the CESTAT, the appellant cited the aforesaid facts and the Bench set aside the order of the Commissioner (A) dismissing the appeal. However, considering the submission made by the appellant, the matter was remanded to the adjudicating authority for causing verification of the records and passing of an order.
If only the Commissioner (A) had the power to restore the appeal, this circuitous remedy could have been avoided."
It appears that the CCE, Mumbai-III is not keen in seeing this case reach its logical end.
The reason - against this order of the CESTAT, he has filed an application for Rectification of Mistake (ROM) and the ground is - that the Tribunal committed an error by making remand to the Adjudicating authority instead of the Commissioner (Appeals).
The Bench was not amused and observed -
“3. I find that this Tribunal with conscious mind has remanded back to the Adjudicating authority for verification of various records. Therefore, I do not find any error committed by the Tribunal. Therefore, the application for rectification of mistake filed by the Revenue is dismissed.”
The above incident exhibits the deep love that Revenue has for litigation. The CESTAT had passed the order on 15.06.2012 and had the ‘remand order' been carried out as ordered, by this time, the case would have been decided. But then, that is the last thing that the Revenue probably wants!