TMI Blog2012 (12) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice. Therefore, just and proper order in such a case would be nothing but an order of remand to adjudicate the matter denovo after giving due hearing to the assessee - it is apparent that Commisioner(A) have power to remand the matter back to original adjudicating authority even after amendment of Sec 35A(3). As decided in COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD-I Versus MEDICO LABS [2004 (9) TMI 108 - HIGH COURT OF GUJARAT AT AHMEDABAD] that Commissioner (Appeals) continues to have power of remand even after the amendment of Section 35A(3) of the Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11.5.2001 - no merit in appeal filed by the department. - Excise Appeal No. 2384 of 2005 - - - Dated:- 6-11-2012 - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd remanding the matter to the adjudicating authority for fresh adjudication. In support of his contention ld. DR has relied upon the judgment of Supreme Court in the matter of MIL India Ltd. vs. CCE, Noida reported in 2007 (210) ELT 188 (SC). 4. Shri Rajesh Chhibber, ld. Advocate on the contrary has argued in support of the impugned order. He pleaded that perusal of the impugned order would show that the Commissioner (Appeals) was conscious of the amendment done in Section 35A (3) of the Central Excise Act and because of this reason he has referred to the judgment of Hon ble High Court at Ahmedabad in the matter of CCE, Ahmedabad vs. Medico Labs reported in 2004 (173) ELT Guj. Wherein Hon ble High Court has held that even after the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to the authority below for fresh decision. 8. As regards the judgement in the matter of MIL India Ltd. (supra) relied upon by the department, we may note that issue before the Supreme Court in the said matter was entirely different. However, the Supreme court while dealing with the matter observed thus:- In fact, the power of remand by the Commissioner (Appeals) has been taken away by amending Section 35A with effect from 11.5.2001 under the Finance Bill, 2001. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) would be able to pass him to set aside the impugned order on the ground of failure of justice. This would create an anomaly with prejudice to the Revenue as it would bring an end to the litigation without adjudicating on the demand raised by the show cause notice. Therefore, just and proper order in such a case would be nothing but an order of remand to adjudicate the matter denovo after giving due hearing to the assessee. Thus, we are of the view that power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944. 12. From the above, it is apparent that the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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