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2013 (3) TMI 303 - AT - Central ExcisePowers of Commissioner to remand - as per the department the amendment of Section 35A(3) as substituted vide Section 128 of the Finance Act, 2001, power of the Commissioner to remand the matter back for fresh adjudication has been taken away - Held that:- Section 35A(3) as amended confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be remand of the matter for fresh adjudication. Like if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944 and it is apparent that the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3). No merit in the appeal filed by department.
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