2010 (4) TMI 409

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....e original authority but the amount was ordered to be credited to Consumer Welfare Fund. Aggrieved, the assessee preferred an appeal to the Commissioner (Appeals) and the latter remanded the case to the lower authority for examining the issue relating to unjust enrichment. The present appeal of the department is directed against the appellate Commissioner's order. The appellant has raised 2 contentions. Firstly, the original authority had, in fact, examined the issue of unjust enrichment. Secondly, the ld. Commissioner (Appeals) had no power of remand when the impugned order was passed. 3. The ld. JDR has laid emphasis on the second ground and has relied on the Hon'ble Supreme Court's judgment in Mil India Ltd. v. Commissioner of C.Ex., No....

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....k to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment……" The decisions cited by. the id. Counsel, which were rendered by relying on a judgment passed by the Hon'ble Supreme Court with reference to the preamended provisions of Section 35A, are per incuriam. The issue on hand is squarely covered by the Hon'ble Supreme Court's decision in Mil India Ltd. Accordingly, we hold that the impugned order was passed without jurisdiction and the same is set aside. 5. The next question is whether the original authority had, in fact, examined the issue of unjust enrichment. In the Order-in-Original, the last portion of the ....