TMI Blog2010 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... nt REPRESENTED BY : Ms. Indira Sisupal, JDR, for the Appellant. Ms. Uma Maheswari, Advocate, for the Respondent. [Order]. Does the Commissioner (Appeals) have the power to remand the case to the adjudicating authority after amendment of Section 35A(3) of the Central Excise Act, 1944 by the Finance Act, 2001 w.e.f.11-5-2001? 2. I have heard both sides on the appeal involving the above issue. I note that in the case of Commissioner v. Enkay (India) Rubber Co. Pvt. Ltd. [2008 (224) E.L.T. 393 (P H)], the Hon ble Punjab High Court held that power of remand of the Commissioner (Appeals) having been expressly taken away by the Finance Act, 2001, he is divested of the power to remand the case back to the adjudicating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on the judgment of Gujarat High Court in the case of Commissioner of Central Excise, Ahmedabad-I v. Medico Labs, 2004 (173) E.L.T. 117 (Guj.), is wholly misplaced as the Division Bench of this Court, of which one of us (MM. Kumar, J.) is a member, in the case of M/s. Enkay (India) Rubber Co. Pvt. Ltd. (supra) has concluded that by necessary intendment expressed by amendment carried by Finance Act, 2001 w.e.f. 11-5-2001, the power of remand from the Commissioner (Appeals) has been taken away. The reliance of learned Counsel for the assessee-respondent on the judgment of Hon ble the Supreme Court as has been relied upon by the Division Bench of Gujarat High Court in the case of Union of India v. Umesh Dhaimode, 1998 (98) E.L.T. 584 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have remanded this matter. If that order of the tribunal remains in operation, the authority below shall, notwithstanding this order, not be entitled to proceed. 4. With this reservation, the appeal is allowed and the judgment and order under appeal is set aside. No order as to costs. 6. It is, thus, evident from the perusal of judgment of Hon ble the Supreme Court that their Lordships were not dealing with a situation where earlier the power of remand was specifically conferred and by amendment it was taken away, which is the situation in the case in hand. It is for the afore-mentioned reason that this Court in the case of M/s. Enkay (India) Rubber Co. Pvt. Ltd. (supra) has concluded that there is necessary intendment available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertinent to note that in the case of Bacha Motors (supra), the Tribunal followed the Medico Labs decision of the jurisdictional High Court while neither the Gujarat High Court nor the Punjab Haryana High Court are the jurisdictional High Courts as far as Chennai Bench is concerned. In the light of the decision of theApex Courtin MIL India Ltd. (supra) and the decision of the Division Bench of the Tribunal in Clestra Modular Systems (supra), I agree with the Revenue that the Commissioner (Appeals) has no power to remand the case back to the original authority w.e.f.11-5-2001. However, re-quantification of the service tax payable by the assessees under Section 73(2) of the Finance Act by excluding the service tax demanded on light motor ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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