2013 (1) TMI 276

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....ion. 2. Along with the appeal the appellant has filed the instant application seeking stay of operation of the order of Commissioner (Appeals). 3. Learned Ms. Rajeshwari K.G., Advocate for the appellant has pleaded that the impugned order of remand passed by the Commissioner (Appeals) is without jurisdiction. Expanding on the argument, learned Counsel for the appellant has drawn out attention to pre-amended Section 35A(3) which specifically conferred the power to remand the matter back to the adjudicating authority upon the Commissioner (Appeals). Learned Counsel submitted that the aforesaid power of remand has been taken away from the Commissioner (Appeals) by virtue of amendment in Section 35A(3) brought in by the Finance Act,....

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....dia v. Umesh Dhaimode reported in 1998 (98) E.L.T. 584 (S.C.). 5. Countering the argument of the respondent learned Counsel of the appellant has submitted that judgment relied upon by the respondent is not applicable to the facts of this case as it is in relation to the interpretation of erstwhile Section 128A(2) of the Customs Act, 1962. 6. We have considered the rival contention and perused the relevant provisions of Customs Act, 1962 and the Excise Act as also the judgment relied upon by the parties. 7. 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 defined the powers of Commissioner (Appeals) in ....

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....preme 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. 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". 11. 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 ....