TMI Blog2013 (1) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... and fair order would be to remand the matter back for fresh adjudication after giving due hearing to the assessee. Thus, power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944. In favour of assessee - E/1832/2005 - A/768/2012-EX(BR)(PB) - Dated:- 2-7-2012 - Justice Ajit Bharihoke, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri Nagesh Pathak, AR, for the Appellant. None, for the Respondent. [Order per : Justice Ajit Bharihoke, President (Oral)]. This is the department s appeal directed against the Order-in-appeal No. 09-CE/MRT-I/2005 dated 28-2-2005 whereby the Commissioner (Appeals), Central Excise, Meerut-I set aside the order-in-original passed by the jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is liable to be set aside, being without jurisdiction. In support of his contention appellant has relied upon judgment of the Supreme Court in the matter of MIL India Ltd. v. CCE, Noida reported in 2007 (210) E.L.T. 188 (S.C.). 4. We have considered the submission of ld. AR and perused the relevant provisions of Customs Act, 1962 and the Excise Act as also the judgment relied upon by the parties. 5. Erstwhile Section 128A(2) of the Customs Act, 1962 and Section 35A(3) of the Excise Act respectively deals with the powers of the Commissioner (Appeals). Both the sections deal with the powers of Commissioner (Appeals) in similar language which is reproduced thus :- (3) The Commissioner (Appeals) shall, after making such further i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) has been taken away by amending Section 35A with effect from 11-5-2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (Appeals) to remand matters back to the adjudicating authority for fresh consideration. 8. The aforesaid observation of the Supreme Court in the matter of MIL India Ltd. (supra) are in the nature of passing remark on the scope of powers of Commissioner (Appeals) during the appeal under Section 35A(3). Therefore, aforesaid observation of the Supreme Court in our view cannot take precedence over the finding of the Supreme Court in the matter of Union of India v. Umesh Dhaimod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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