TMI Blog2010 (7) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... he statute has laid down powers available to the Tribunal it is not possible to accept the contention raised on behalf of the appellant that upon the original order of adjudication having been quashed on technical ground fresh adjudication was always permissible -The powers of the Tribunal are statutorily granted - There is no question of any other statutory authority under the same statute reading something more than in the order of the Tribunal - The impugned order of the Tribunal being in consonance with the provisions of Section 35C of the Act - Thus, the appeal is dismissed. - 1862 of 2009 - - - Dated:- 22-7-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY : Shri Varun K. Patel, for the Appellant. None, for the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order-in-original dated 23-3-1999, duty to the tune of Rs. 2,55,254/- came to be confirmed with penalty and Modvat credit of Rs. 1,56,668/- came to be disallowed. Against the said order the respondent assessee preferred the appeal before Commissioner (Appeals), which came to be dismissed vide order dated 13-10-2000. The assessee preferred second appeal before the Tribunal but did not succeed. The assessee thereafter carried the matter before this High Court in Tax Appeal No. 426 of 2004 which came to be disposed of vide judgment and order dated 14-9-2004 whereby the appeal was permitted to be withdrawn with a view to enable the respondent to prefer review application before the Tribunal. The assessee, thereafter, moved an application be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Madhya Pradesh, AIR 1979 SC 1923. 5. In the impugned order the Tribunal after referring to the contents of the earlier order dated 2-2-2005 made on the miscellaneous application filed by the respondent, has observed thus : 6. As is seen from the above, though the Tribunal has observed that the case should have been adjudicated by the Commissioner/Deputy Commissioner, there are no such directions to re-adjudicate, in the said order of the Tribunal. The application for setting aside the impugned orders passed earlier stands allowed by the Tribunal without any direction of remand. I find that an identical situation was considered by the Hon ble Madras High Court in the case of Collector or Central Excise, Madras v. V.K. Palappa N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner to adjudicate the matter afresh. Once the impugned order is set aside unconditionally, the Commissioner, in my view, was not right in reopening the proceedings to re-decide the matter afresh in absence of any direction to the contrary. The observations made by the Tribunal to the effect that the case should have been adjudicated by the original adjudicating authority at the level of Commissioner/Deputy Commissioner cannot be interpreted or construed as a direction to the Commissioner to decide the same afresh. The same, at best, is the reasoning adopted by the Tribunal for setting aside the impugned order. 7. Thus, is apparent that while setting aside the original order made by adjudicating authority on the ground of lack of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant that upon the original order of adjudication having been quashed on technical ground fresh adjudication was always permissible. The powers of the Tribunal are statutorily granted. The Tribunal itself being a creature of statute, there is no question of any other statutory authority under the same statute reading something more than in the order of the Tribunal, viz. more than what is stipulated by the statute. 8. In the circumstances, the impugned order of the Tribunal being in consonance with the provisions of Section 35C of the Act, it cannot be stated that the Tribunal has committed any legal error giving rise to a question of law, so as to warrant interference. In absence of any question of law as proposed or otherwise, m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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