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National Fertilizers Ltd. Versus CCE & S.T., Indore

2016 (4) TMI 546 - CESTAT NEW DELHI

Whether the Commissioner (A) has power to remand the matter back to Original Authority for de-novo adjudication in terms of Section 35A(3) of Central Excise Act, 1944 - Held that:- Section 35 A(3) ibid prior to its amendment (upto 10.05.2001) empowered the Commissioner (A) for referring the case back to the Adjudicating Authority. However, the said statutory provision was amended w.e.f. 11.05.2011, specifically curtailing the power of the Appellate Commissioner for sending back the case to the a .....

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nt : Shri. Vaibhav Bhatnagar, D.R. ORDER PER: S.K. MOHANTY Feeling aggrieved with the impugned order dated 10.11.2015 passed by the Commissioner (Appeals), Service Tax, Mumbai, the appellant has preferred the appeal before this Tribunal. The grievance of the appellant in this appeal is that in terms of Section 35 A (3) of the Central Excise Act, 1944 (as made applicable to the provisions of Finance Act, 1994), the Commissioner (Appeals) is divested of power to remand the case back to the Adjudic .....

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just enrichment etc. shall be examined by the Jurisdictional DC/AC before deciding the refund claim. 4. The short question involved in this appeal for consideration by this Tribunal is as to whether the Commissioner (Appeals) has the power to remand the matter back to the Original Authority for de-novo adjudication in terms of Section 35A (3) ibid. 5. Section 35 A (3) ibid prior to its amendment (upto 10.05.2001) empowered the Commissioner (Appeals) for referring the case back to the Adjudicatin .....

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ng and purport behind the amending provisions of Section 35 A (3) ibid the Hon ble Supreme Court in the case of MIL India Ltd. vs. Commissioner of Central Excise, Noida reported in 2007 (210) ELT 188 (S.C.) have categorically held that the Commissioner (Appeal) s order can be considered as an adjudication / order of assessment; thus, the Commissioner (Appeals) is not empowered under the statute to remand the case back to the original authority. The relevant portion of the said judgment is extrac .....

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