TMI Blog2012 (7) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 which deals with the power of the first appellate authority. Supreme Court in case of Union of India vs. Umesh Dhaimode (1997 (2) TMI 140 (SC)) while interpreting Section 128(2) of the Customs Act, held that aforesaid provision vested the appellate authority with power to remand the matter back. In view of the aforesaid position in law expounded by the Supreme Court, no merit exists in appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred these appeals on sole ground that as per Section 35A of the Central Excise Act, 1944, Commissioner (Appeals) have no power to remand the case back for de novo adjudication. 3. The respondent has contested the appeals by filing cross-objection in respect of the above referred appeals and taken a position that in view of the judgments of the Tribunal in the case of C.C.E., Raipur vs. Laxmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the cross-objection. 5. Shri Nagesh Pathak, learned A.R. for Revenue fairly concedes that this is a fit case for remand. He, however, submits that Department has preferred this appeal only for the reason that after the amendment brought out in Section 35A of the Central Excise Act, 1944 by the Finance Act, 2001 the Commissioner (Appeals) has been divested of the power to remand the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against : 7. The wording of the section 35A(3) is exactly similar to the wording of Section 128(2) of the Customs Act, 1962 which deals with the power of the first appellate authority. The issue of interpretation of the aforesaid Section 128(2) in the context of the powers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid 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. In view of the aforesaid position in law expounded by the Supreme Court we do not find merit in these appeals. 7. Appeals as well as Cross-Objection are disposed accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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