2012 (12) TMI 533

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....ion. 2. The issue involved in this case is whether or not after the amendment in Section 35A of the Central Excise Act introduced vide Section 128 of the Finance Act 2001 in May 2001 the Commissioner has been divested of his power to remand the matter to the adjudicating authority for fresh adjudication. 3. Shri I. Baig, ld. DR appearing for the appellant-department has contended that impugned order remanding the matter to the adjudicating authority for denovo adjudication is not sustainable in view of Section 35A(3) as substituted by Finance Act, 2001 dated 11.05.2001. Expanding on the argument ld. DR has taken us through the amended section as also the pre-amended section and submitted that comparison of the aforesaid provisions wou....

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.... Commissioner (Appeals). Both the sections defined the powers of Commissioner (Appeals) in similar language which is reproduced thus:- (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against. 7. Interpretation of above provision came up before the Supreme court in the matter of UOI vs. Umesh Dhaimode (supra) and the Supreme Court after analyzing the provision held that power to remand the matter to the authority below for fresh decision is inbuilt in the aforesaid provision. The relevant observation of Supreme court is reproduced thus:- 2. As the order under appeal itself note....

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....der Section 35A (3). Therefore, aforesaid observation of the Supreme Court in our view cannot take precedents over the finding of the Supreme Court in the matter of Union of India vs. Umesh Dhimode (supra) passed on the analysis of the provision itself. 10. The Gujarat High Court in the case of CCE, Ahmedabad vs. Medico Labs reported in 2004 (173) ELT 117 (Guj.) has also held that Commissioner (Appeals) continues to have power of remand even after the amendment of Section 35A(3) of the Central Excise Act, 1944 by Finance Act, 2001 w.e.f. 11.5.2001.   11. Otherwise also Section 35A(3) of the Act has amended confers powers on the Commissioner (Appeals) to annual the order-in-original and also to pass just and proper order. There ma....