TMI Blog2002 (3) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... d - It is not possible for this office to make these verifications hence the case is remanded to the Asstt. Commissioner for making necessary verifications and deciding the case afresh after observing principles of natural justice. The appeal is disposed of by way of remand. 2. The Revenue s grievance is that after enactment of Finance Bill, 2001, Section 35A(3) of Central Excise Act, 1944 has been amended w.e.f. 11-5-2001 and the powers of Commissioner (Appeals) to remand/refer the case back to the adjudicating authority has been withdrawn. Inasmuch as the Commissioner (Appeals) has passed the impugned order on 24-5-2001 and has disposed the appeal by way of remand, the impugned order is beyond the statutory powers as per amendment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er authorities, when he finds it difficult to decide the matter on merits at his level. The amended provisions of Section 35A(3) required the appellate authority to confirm, modify or annul the decision appealed against. First of all it is to be noticed that there is no debarring clause in the said section against remanding powers to be excersised by the appellate authority. Further it is noticed that the appellate authority has powers to either confirm, to modify or to annul the decision of the lower authorities. When the order of the lower authorities is set aside and the matter is remanded to him, does it not amount to annulling the appealed-against order ? 6. The Hon ble Andhra Pradesh High Court in the case of Thimmasamudram Tobacco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k that the absence of such provision disables the appellate authority from sending the matter back to the officer that passed the order. The conferment of the appellate jurisdiction on a Tribunal, in our opinion, necessarily implies that it has as much power to remand as it has to confirm, alter or annul and incidentally it has the power to hear the appeal. Without such power it is difficult for the appellate authority to dispose of an appeal satisfactorily. If the appellate authority finds that the procedure prescribed by a provision of law has been violated by an officer he has either to allow the appeal without directing any fresh inquiry or dismiss the appeal, if the argument of the appellant s Counsel were to prevail and this cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the aforesaid provision, read together, necessarily imply that the appellate authority has the power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision. 8. Under the amended provisions of Section 35A(3), the Commissioner (Appeals) has been given the power to pass such orders as he thinks fit by annulling the decision appealed against. By remanding the matter, the order appealed against is set aside which amounts to nothing but annulling the same. As such, restricted interpretation to the said provision cannot be given in view of the above decision of the Hon ble Supreme Court and it has to be held that the power to remand the matter is inherent in the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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