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TMI Blog2014 (4) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) has power to remand the case back to the adjudicating authority for denovo adjudication?" Short question is whether the Commissioner (Appeals) exercising powers under section 85 of the Finance Act, 1994 has the power to remand the proceedings back to the adjudicating authority. It would not be necessary to record the facts since this is a pure question of law, barring observing that in the impugned judgment, the Tribunal relying on the decision of the Delhi High Court reported in 2011 (24) STR 650 (Del.) held that under section 85(4) of the Finance Act, 1994, the Commissioner (Appeals) would have power to remand a case to the adjudicating authority for fresh consideration. Section 85 of the Finance Act, 1994 pertains to appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may include an order enhancing the service tax, interest or penalty. Proviso to sub-section (4) provides that no order enhancing the service tax, interest or penalty shall be made without affording a reasonable opportunity to the person affected. Sub-section (5) of section 85 provides that subject to the provisions of the said Chapter, in hearing the appeals and making orders, the Commissioner shall exercise the same power and follow the same procedure as he exercises and follows in hearing the appeals and passing orders under the Central Excise Act, 1944. In plain terms, sub-section (4) of section 85 of the Finance Act, 1994 is worded widely and gives ample powers to the Commissioner while hearing and disposing of the appeals to pass suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot disable the appellate authority from sending the matter to the authority that passed the order for fresh inquiry. In the case of Union of India v. Umesh Dhaimode, 1998 (98) ELT 584 (SC), the Supreme Court in the context of section 128(2) of the Customs Act, 1962 as it stood at the relevant time, held and observed as under: "2. As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fir confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against." On the basis of such changes made in sub-section (3) of section 35A, counsel would contend that the powers of remand which were previously specifically granted to the Commissioner (Appeals) were taken away. This conscious omission by the Legislature would necessarily mean that after 11.5.2001, the Commissioner (Appeals) would not have power to remand the proceedings in terms of section 35A(3) of the Central Excise Act, 1944. She would relate such limitation of powers to the present case by referring to sub-section (5) of section 85 of the Finance Act, 1944 which as we have noticed, provides that the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , contend that when there was conscious decision of the Legislature to amend certain power of remand which was previously specifically provided in the statute, the same would amount to taking away powers which hitherto existed. We need not however, enter into this arena because in the present case, we are not concerned with this provision of appeal. We, however, cannot accept the argument of Ms.Mandavia that by virtue of sub-section (5) of section 85, the same limitation on the Commissioner (Appeals) to remand a proceedings contained in section 35A(3) of the Central Excise Act, 1944 must apply in the appeals under section 85 of the Finance Act, 1944 also. This is so because, sub-section (5) of section 85 though requires the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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