TMI Blog2014 (4) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) to follow the same procedure and exercise same powers in making orders under section 85, as he does in the Central Excise Act, 1944 in appeals, this sub-section itself starts with the expression “subject to the provisions of this Chapter”. Sub-section (4) of section 85 itself contains the width of the power of the Commissioner (Appeals) in hearing the proceedings of appeal under section 85. The scope of such powers flowing from sub-section 85(4) therefore cannot be curtailed by any reference to sub-section (5) of section 85 of the Finance Act, 1994 - Decided against Revenue. - Tax Appeal No. 276 of 2014 - - - Dated:- 3-4-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Appellant : Ms. Sejal K. Mandavia, Adv. JUDGEME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Sub-sections (4) and (5) which are relevant for our purpose, read as under: (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter pass such orders as he thinks fit and such order may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers land follow the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the the Commissioner (Appeals) with power to even remand the proceedings. If proper inquiry is not conducted or the proceedings is decided ex parte, it would not be necessary in every case that the Commissioner (Appeals) converts himself to the adjudicating authority and conducts the entire inquiry necessary for proper adjudication of the issues. In such a case, the Commissioner (Appeals) may as well decide to remand the proceedings, and we see no limitation on his powers to do so. This is precisely how the situation has been viewed by various courts. Way back in the year 1961, a Division Bench of the Andhra Pradesh High Court in the case of Thimmasamudram Tobacco Co. v. Asstt. Collector, C.E., AIR 1961 Andhra Predesh 324, in the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del.), in the context of section 85 of the Finance Act, 1944 itself confirmed the decision of the CESTAT holding that the Commissioner (Appeals) would have power to remand the proceedings to the adjudicating authority. Insofar as section 85(4) of the Finance Act, 1994 is concerned, our view is clear and we agree with the view expressed by the Tribunal in the impugned judgment. Counsel for the Revenue, however, drew our attention to section 35A(3) of the Central Excise Act, 1944 which came to be amended with effect from 11.5.2001. Prior to the amendment, the said provision read as under: The Commissioner (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I v. Medico Labs., 2004 (173) ELT 117 (Guj.) held that the Commissioner of Central Excise would retain the powers of remand. The Court relied on a decision of the Supreme Court in the case of Umesh Dhaimode (supra). Ms.Mandavia for the appellant however, would draw our attention to a later decision of the Supreme Court in the case of MIL India Ltd v. Commissioner of C.Ex. Noida, 2007 (210) ELT 188 (SC) in which in the context of the nature of order passed by the appellate Commissioner, whether it can be treated as an order of assessment, the Court observed that with effect from 11.5.2001, by amending section 35A of the Central Excise Act, power of remand of the Commissioner (Appeals) has been taken away. In the present case, we are no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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