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TMI Blog2007 (10) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be confiscated and that Central Excise Duty was payable by the noticee no. 1, GPIL, on clandestine clearance of ROTO yarn. Penalty was imposed on both the noticees. The Appellate Commissioner, on the basis of the material on record, came to a finding that, despite repeated requests for supplying copies of the relevant record/documents for preparing defence reply, copies of the documents were given only after the order-in-original was made. It was, therefore, held that, an opportunity should be given to the respondent to plead their case as the copies of the resumed record were given to them after the issue of the order-in-original. 4. The learned authorised representative for the Department, strongly contended that, there was no power conferred on the Commissioner (Appeals) to make an order of remand under the provisions of Section 35-A(3) of the Act. It was submitted that, the power of remand, which was earlier specifically conferred, was taken away by the amendment made in Section 35-A(3) w.e.f. 11th May, 2001. He placed reliance on the decision of the High Court of Punjab & Haryana in the case of Commissioner of Central Excise, Jalandhar v. B.C. Kataria, General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; ......... (2) ......... ......... ......... (3) The Collector (Appeals) shall, 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." (Emphasis added) 5.2 The provision of Section 35-A(3) was substituted w.e.f. 11-5-2001 by the Finance Act 14 of 2001, and the amended provision reads as follows : "35A Procedure in appeal - (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant to be heard, if he so desires, and making such further inquiry as may be necessary, pass such order as it thinks fit, confirming, modifying or annulling the decision or order appealed against." (Emphasis added) 6.1. By amendment made by the Finance Act 44 of 1980, the provision empowering the appellate authority to make orders, was shifted in its amended form to Section 128-A(3) of the Customs Act, 1962, which was in the following terms : "128-A Procedure in appeal - (1) ......... ......... ......... (2) ......... ......... & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood prior to the amendment of 1980. This aspect is important, because the Hon'ble Supreme Court has construed the provision of Section 128(2) of the Customs Act, as it stood prior to the amendment of 1980 in the case of Union of India v. Umesh Dhaimode reported in 1998 (98) E.L.T. 584 (S.C.). In that case, the point in issue was identical to the one, which is involved in the present case, in the text of the similar provision of Section 35A(3) that operates w.e.f. 11-5-2001. Referring to the provision of Section 128(2) of the Customs Act, 1962, as it stood prior to the amendment of 1980, it was observed that, the said provision vested the appellate authority with powers to pass such order as it deemed fit, confirming, modifying or annulling the decision made against. It was held that, "an order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of remand was redundant in these two statutory provisions after the decision of the Hon'ble Supreme Court in the case of Union of India v. Umesh Dhaimode (supra), and that is why the specific expression relating to power of remand was unnecessary and came to be omitted in the substituted provisions w.e.f. 11-5-2001. 8. For the foregoing reasons, the Division Bench of the Gujarat High Court, has, with respect, correctly applied the ratio of the decision of the Hon'ble Supreme Court in the case of Union of India v. Umesh Dhaimode (supra), for holding that, the Commissioner (Appeals) continues to have power of remand under the amended provisions of the Central Excise Act, 1944, and that this Tribunal was bound by the judgment of the Hon'ble Supreme Court and not by the decision of the Larger Bench of this Tribunal in the case of Commissioner of Central Excise, Bhubaneshwar v. Oripol Industries reported in 2003 (155) E.L.T. 278 (T-LB). It would appear that, the fact that the provisions of Section 35-A(3), which operate w.e.f. 11-5-2001, were identical to the provisions of Section 128(2) of the Customs Act, 1962, as it stood prior to the amendment of 1980, was not brough ..... X X X X Extracts X X X X X X X X Extracts X X X X
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