2013 (1) TMI 198

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....rity and remanded the matter back for readjudication. 2. Only issue is raised in this appeal is that the appellant after amendment of Section 35A of the Central Excise Act, 1944 whereby expressly conferred power to remand the matter was taken away. The Commissioner (Appeals) has no jurisdiction to remand the matter back for adjudication to the concerned adjudicating authority. 3. Ld. Shri Nagesh Pathak, AR, for the department has contended that the impugned order of remand passed by Commissioner (Appeals) is without jurisdiction. Expanding on the order ld. Shri Pathak submitted that as per Section 35A(3) the Commissioner (Appeals) shall after making further enquiry, as may be necessary pass an order as he thinks just and pro....

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....ther inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against". 6. Interpretation of above provision came up before the Supreme Court in the matter of UOI v. Umesh Dhaimode - 1998 (98) E.L.T. 584 (S.C.) 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 notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed ....

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....Union of India v. Umesh Dhaimode (supra) passed on the basis of analysis of the provision itself. 9. The Gujarat High Court in the case of CCE, Ahmedabad v. Medico Labs reported in 2004 (173) E.L.T. 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. 10. Otherwise also Section 35A(3) of the Act, as amended, confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be to remand the matter for fresh adjudication. For example, if the order-in-original is passe....