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2015 (10) TMI 2537 - CESTAT NEW DELHI

2015 (10) TMI 2537 - CESTAT NEW DELHI - 2016 (42) S.T.R. 351 (Tri. - Del.) - Power of Commissioner (Appeals) to remand the matter - Section 35A(3) of Central Excise Act, 1944 - Revenue contended that Commissioner (Appeals) has no power of remand as the said power was taken away by amending Section 35A of the Central Excise Act, 1944 w.e.f. 11-5-2001 - Held that:- it has been rightly contended by the Revenue that the Commissioner (Appeals) had the power only to confirm, modify or annul the decisi .....

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hear and determine the appeal and subject to the provisions of this chapter pass such order as he thinks fit and such orders may include an order enhancing the service tax interest or penalty”. Thus it is seen that the language of Section 85(4) is not pari materia the language of Section 35A(3) of the Central Excise Act, 1944. Indeed, Section 85(4) of the Finance Act, 1994 allows/authorises Commissioner (Appeals) to pass such order he thinks fit and therefore it cannot be argued that as per this .....

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aghuram, President and Shri R.K. Singh, Member (T) Shri Ranjan Khanna, DR, for the Appellant. Shri Manish Gaur, Advocate, for the Respondent. ORDER [Order per : R.K. Singh, Member (T)]. - Revenue has filed this appeal against order-in-appeal dated 25-11-2008 in terms of which the order-in-original dated 14-7-2008 was set aside and the case was remitted to the primary adjudicating authority for decision afresh. The order portion of the impugned order-in-appeal is reproduced below : 6. Conseq .....

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s the said power was taken away by amending Section 35A of the Central Excise Act, 1944 w.e.f. 11-5-2001. Revenue has cited several judgments including judgment of the Apex Court to the effect that the power of remand has been taken away by virtue of amendment to Section 35A of the Central Excise Act, 1944 w.e.f. 11-5-2001. 3. The appellant has contended that while the power of remand has been taken away for the purpose of Central Excise appeals, such power continues to exist in respect of .....

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