TMI Blog2004 (9) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... I, which was allowed by Mr. V.K. Jain, Commissioner (Appeals)-I, Central Excise, Ahmedabad by his order dated 12-6-2003 and the matter was remanded for de novo consideration after setting aside the impugned order passed in original by the authority on 27-8-2000. 3. M/s. Medico Labs. had filed refund claim of Rs. 85,812/-, which was sanctioned to them. On the basis of objection raised by the Audit in post audit of refund claim, a show cause notice dated 20-3-92 was issued to M/s. Medico Labs. on the ground that the refund was erroneously granted in their favour as they have not produced any documents to show that the duty burden was not passed on by the department. However, later on ACCE, Division-IV had withdrawn the said notice on 30-10- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case on merits and found that his predecessor in office had examined the issue of unjust enrichment before sanctioning refund claim and accordingly he withdrew the show cause notice. 5. Considering the facts and circumstances of the case and the material on record as well as submissions made by the appellant, the Commissioner (Appeals), Central Excise, Ahmedabad allowed the appeal and set aside the order in original passed by the adjudicating authority and sent it for de novo consideration by remanding the matter to the adjudicating authority on the ground that the refund claim was earlier sanctioned by the earlier authority and, therefore, it was obvious that all the documents pertaining to refund claim would be lying with the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Medico Labs., therefore, we have not narrated the facts of this case in detail, as common point is involved in both these appeals. Whether the Commissioner (Appeals) has any power of remand after amendment to Section 35(A)(3) which came into force with effect from 11-5-2001? 7. The aforesaid order dated 4-6-2003 passed in appeal was also carried in appeal by the Commissioner, Central Excise, Ahmedabad before the Appellate Tribunal in appeal. As stated earlier, in both the appeals common question of law came to be decided by the learned Single Member of the Tribunal by his impugned common order dated 14-10-2003 (Annexure-A) whereby the learned Appellate Tribunal dismissed both the appeals. Hence, both these appeals. 8. The following tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive by the Larger Bench of the Tribunal by its order dated 12-5-2003 (Ann.-C) [Since reported in 2003 (155) E.L.T. 278 (Tri. - LB)] by agreeing with the view taken by the West Region Bench in Vipor Chemicals Pvt. Ltd. v. Commissioner of Customs reported in 2002 (144) E.L.T. 385 and not agreeing with the view taken by the East Regional Bench in case of CCE Customs, Bhubaneshwar v. Indian Aluminium Co. - 2002 (144) E.L.T. 97 (T). 9. It may be stated that the Department had never contended before the Commissioner (Appeals) in appeals filed by the other side that he had no power of remand the matter after the amendment in Section 35A of the Central Excise- Act, 1944 which came into force with effect from 11-5-2001 and though both the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 12-5-2003 passed by the Tribunal in other cases. From the said judgment of Larger Bench of the Appellate Tribunal, it clearly appears that heavy reliance was placed by the Tribunal on the judgment of the Hon'ble Supreme Court in cases of (i) Shashikant Laxman Kale v. Union of India - AIR 1990 SC 2114 (ii) K.P Verghese v. ITO, Ernakulam - AIR 1981 SC 1922 for coming to the conclusion that in appeal Commissioner (Appeals) has no power to remand the case. 11. With utmost respect to the Larger Bench of the Appellate Tribunal, it had not considered the later judgment of the Hon'ble Supreme Court in case of Union of India v. Umesh Dhaimode - 1998 (98) E.L.T. 584 (S.C.). Relying on this decision of Umesh Dhaimode (supra) the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, which has come into force with effect from 11-5-2001, powers of remand by allowing the appeal of the Commissioner (Appeals) have not been taken away specifically. In that view of the matter, we are of the considered opinion that the appellate authority viz. Commissioner (Appeals) was vested with the power while deciding the appeal as he deemed fit by confirming, modifying or annulling the decision or order appealed against him. In our considered opinion, order of remand necessarily annuls the decision, which is under appeal before the appellate authority. Therefore, we entirely agree with the view taken by the learned Single Member of the Tribunal that even after amendment of Section 35A or the Central Excise Act, the appellate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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