TMI Blog2007 (9) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Excise Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal'), in Appeal Nos. E/367/05-NB-B and E/337/05-NB-B, as common question of facts are involved. The revenue has raised following question of law in both the appeals:- "Whether Commissioner (Appeals) is still vested with the powers to remand back cases to the adjudicating authority consequent to the specific amendment in this regard carried out by the Finance Act, 2001 w.e.f. 11.5.2001." 2. After hearing learned counsel for the parties, perusing the Order-in-Original dated 23.3.2004, passed by the Adjudicating Authority (A-1), Order-in-Appeal dated 29.11.2004, passed by the Commissioner (Appeals) (A-2) and orders dated 14.3.2005 and 10.3.2005, passed by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication or decision'. There is expression of necessary intendment in deletion of the aforementioned expression by the Legislature. In that regard we place reliance on the judgments of Hon'ble the Supreme Court inthe cases of Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, (1999) 8 SCC 16; and Garikepadi Veeraya v. Subbiah Choudhry, AIR 1957 SC 540." The ratio of the judgment as extracted above clearly brings out that amendment in Section 35A(3) of the Act was carried in the same manner by the Finance Act, 2001 itself in Section 128A(3) of the 1962 Act and a perusal of both the provisions in juxta position would show that they are same before and after amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the ratio of Division Bench judgment in the case of M/s Enkay (India) Rubber Co. Pvt. Ltd. (supra) would squarely apply to the facts of the present case and the appeals filed by the revenue deserves to be allowed. We are not impressed with the argument raised by learned counsel for the assessee-respondent that the Commissioner (Appeals) would continue to enjoy power of remand after deletion of that power from Section 35A(3) of the Act, by amendment made by the Finance Act, 2001.We are of the considered view that reliance placed on the judgment of Gujarat High Court in the case of Commissioner of Central Excise, Ahmedabad-I v. Medico Labs, 2004 (173) E.L.T. 117 (Guj.), is wholly misplaced as the Division Bench of this Court, of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se portions of the 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. 4. We may point out that the respondent has not appeared but has filed an affidavit which suggests that the Customs, Excise and Gold (Control) Appellate Tribunal had also taken the view that the appellate authority, on an application made to it by another person in the same position as the respondent, could not have remanded this matter. If that order of the tribunal remains in operation, the authority below shall, notwithstanding this order, not be entitled to proceed. 5. With this reservatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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