TMI Blog2013 (1) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... oke, Shri Rakesh Kumar, JJ. REPRESENTED BY : Ms. Rajeshwari K.G., Advocate, for the Appellant. Shri M.S. Negi, AR, for the Respondent. [Order per : Justice Ajit Bharihoke, President (Oral)]. The appellant is aggrieved with the order of Commissioner (Appeals), dated 26-2-2012 whereby he set aside the order-in-original dated 30-6-2011 passed by the Assistant Commissioner, Central Excise Division-II, Allahabad and remanded the matter back for re-adjudication. 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 Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel submits that an order of remand necessarily annul the decision and the appellate authority is also vested with the power to pass just and proper order. If both these aspects of Section 35A(2) are read together, it necessarily imply that appellate authority has power to satisfy the decision under appeal and to remand the matter for fresh decision. In support of this contention ld. Counsel for the respondent has relied upon in the matter of Union of India 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 10. As regards the judgment 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. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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