Per Gowri Shankar :

Appeal taken up for disposal with consent after waiving deposit.

2. The question for consideration in this appeal is the classification of linear alpha olefin C-14 imported by the appellant. The appellant claimed classification of the goods under heading 29.01 which covers unsaturated acyclic hydrocarbons. By notice issued to the appellant, the department proposed classification of the goods under heading 27.10 as petroleum oils and oils obtained from bituminous minerals. The Asst. Commissioner confirmed the proposal in the notice. He did not accept the contention raised before him by the importer that the report dated 14.11.98 of the test by the Indian Institute of Technology (IIT for short), Mumbai containing the result of the test carried out by it was in its favour. He relied on an opinion of the Dy. Chief chemist which stated that the test carried out by the IIT did not indicate the nature of the isomers, the presence of which may make a difference to the classification. He confirmed the classification proposed in the notice.

3. The importer appealed this order. The Commissioner (Appeals) found that the test report of the IIT which stated that I-tetradecene which constituted 97% of the imported consignment was not a mixture of two or more alpha olefin C-14 was insufficient to decide the classification "as it talks about only 97% of main ingredient being not a mixture of 2 or more isomers of alpha olefin C-14 when the issue requires analysis of the entire sample on 100% basis. In short, it is required to be categorically ascertained whether 97% main ingredient and balance 3% of other constituents could collectively be reckoned as "Mixtures of acyclic Hydrocarbon Isomers." He also noted that the technical opinion of Dy. Chief Chemist of the test report of the IIT had not been communicated to the appellant and could not have been relied upon by the adjudicating authority. He thereafter directed retest of samples to be drawn afresh "on the points discussed above for the purpose of correct determination of classification." Hence this appeal.

4. We are of the view that the order of Commissioner (Appeals) remanding the matter to the Asst. Commissioner for adjudication afresh is required to be set aside for two reasons.

5. The first is as a result of the amendment carried out under Section 128 of the Act. Sub-section (3) of this section before it was amended on 11.5.2001, read as follows:

"The Commissioner (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary''.

After its amendment it reads as below.

"The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against."

6. The only conclusion that can be drawn from the amendment is that the power which was earlier available to the Commissioner (Appeals) to dispose of an appeal by referring the case back to the adjudicating authority for fresh adjudication of the case was no longer available to him. After the amendment, the Commissioner (Appeals) cannot remand the case back to the adjudication authority but has to decide the appeal by passing orders confirming or modifying the Commissioner's order or annulling the decision appealed against.

7. The second reason is as follows. The Commissioner is clearly in error when he says that 97% of the consignment was tested or analysed in the IIT, and not 100% (in the extract that we have quoted above.) In point of fact, what was tested was a tiny portion of the goods contained in the sample. The test report indicates that 97% of the sample comprised of C-14 olefin,