Remand order modification cannot become review; fresh adjudication with hearing is required when retesting of remnant sample is impossible.

A modification request cannot be used to secure a review of an earlier remand order. Where the Tribunal had directed retesting of the remnant sample and fresh adjudication after supply of the retest report, the unavailability of that sample did not justify altering the earlier order. The proper course was for the adjudicating authority to pass a fresh decision after giving the assessee an opportunity of hearing. The Tribunal therefore rejected the Revenue's modification application and directed fresh adjudication.

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Issues: Whether the Revenue's request for modification of the remand order could be allowed when the remnant sample was unavailable, and whether the original test report could be upheld on that basis.

Analysis: The earlier order had directed retesting of the remnant sample and fresh adjudication after supplying the retest report to the assessee. Since the remnant sample was stated to be unavailable, the proper course was for the adjudicating authority to take a fresh decision after giving the assessee an opportunity of hearing. Entertaining the modification request on the ground that the remnant sample could not be tested would amount to a review of the Tribunal's earlier order, which was beyond the Tribunal's power.

Conclusion: The modification application filed by the Revenue was rejected, and the Commissioner was directed to pass a fresh order.

Ratio Decidendi: A modification request cannot be used to achieve a review of an earlier remand order, and where retesting cannot be carried out, fresh adjudication after hearing the assessee is required.

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