Can CESTAT remand case to Assistant Commissioner?
AS per Section 35C of the Central Excise Act, the Tribunal may pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order. Section 129B of the Customs Act is identically worded.
It is often found the Tribunal remands cases to Assistant Commissioner/Deputy Commissioner who is not the authority, which passed the order before the Tribunal.
See this real situation:
Commissioner (Appeals) remanded a case to the Assistant Commissioner. Department took the matter in appeal to Tribunal arguing that Commissioner (Appeals) has no power to remand. Tribunal agreed -and remanded the case back to the Assistant Commissioner! Where was the litigation and who won? If the revenue was to take the matter to the Tribunal to get the case remanded to Assistant Commissioner to whom the case was already remanded, what is our litigation all about?
A case reaches the CESTAT from an order passed by a jurisdictional Commissioner or a Commissioner (Appeals). The Commissioner (Appeals) passes his order on an appeal from an order of Assistant Commissioner/Deputy Commissioner/Joint Commissioner/Additional Commissioner. Once the Commissioner (Appeals) passes an order, the order of the lower authority does not exist and gets merged with the order of the Commissioner (Appeals). So the Tribunal can remand the case back to the Commissioner (Appeals) and not Assistant Commissioner/Deputy Commissioner. The law also provides for only sending the case back to the authority which passed the order under appeal.
However the Income Tax Appellate Tribunal appears to have this power to remand to the Original Adjudicating Authority. Section 254(1) of the Income Tax Act reads, "The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard pass such orders thereon as it thinks fit.” This perhaps gives the ITAT the power to remand to an authority lower than Commissioner (Appeals) but the CESTAT does not seem to have such powers.