TMI Blog2012 (6) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority even after the amendment of Section 035A( 3). Both the sections defined the powers of Commissioner (Appeals) in similar language. - E/2162 of 2005 & CO No.196 of 2005 - FINAL ORDER NO.A/759/2012- EX( BR) - Dated:- 27-6-2012 - Ajit Bharihoke , (President) Rakesh Kumar, Member (Technical) For the Appellant: Shri R K Verma , AR For the Respondent: Shri C Harishankar , Adv. Per: Ajit Bharihoke : This is the department's appeal directed against the Order-in-Appeal No . 32-CE/MRT--I/CEX/IND/2012 dated 29.03.2005 whereby the Commissioner (Appeals), Central Excise, Meerut-I set aside the order-in-original passed by the jurisdictional adjudicating authority and remanded the matter back for fresh decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the matter back to adjudicating authority was specifically given to the Commissioner (Appeals). Ld. AR submits that the fact that the aforesaid power by way of amendment has been taken away is clear indication of intention of legislature to withdraw the power to remand from the Commissioner (Appeals). Thus, it is contended that impugned order remanding the case back for adjudication is liable to be set aside, being without jurisdiction. 4. On the contrary, ld. Counsel for the respondent has pleaded that the amendment of Section 35A by no means has taken away the power of the Commissioner (Appeals) to remand the matter. It is submitted that reading of Section 35A of the Act would show that this provision confers power on the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) in similar language which is reproduced thus:- (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against . 8. Interpretation of above provision came up before the Supreme court in the matter of UOI vs. Umesh Dhaimode (supra) and the Supreme Court after analyzing the provision held that power to remand the matter to the authority below for fresh decision is inbuilt in the aforesaid provision. The relevant observation of Supreme court is reproduced thus:- 2. As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew can not take precedence over the finding of the Supreme Court in the matter of Union of India vs. Umesh Dhimode (supra) passed on the analysis of similar provision itself. 11. The Gujarat High Court in the case of CCE, Ahmedabad vs. Medico Labs reported in 2004 (173) ELT 117 ( Guj .) has also held 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. 12. Otherwise also Section 35A( 3) of the Act as amended confers powers on the Commissioner (Appeals) to annual the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be to remand the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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