2013 (3) TMI 303

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.... amendment of Section 35A(3) of the Central Excise Act, 1944, which was substituted vide Section 128 of the Finance Act, 2001, power of the Commissioner to remand the matter back for fresh adjudication has been taken away, as such, the Commissioner (Appeals) had no jurisdiction to remand the matter back and the impugned order is therefore, liable to be set aside. Expanding on the argument, learned Shri M.S. Negi has taken us to the pre-amended section as well as amended Section 35A(3) of the Central Excise Act and submitted that comparison of those two provisions would show that power to remand has been specifically dropped by way of amendment. Shri Negi has relied upon the judgment of Hon'ble Supreme Court in the case of MIL India Ltd. v. ....

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....e 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 against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision, read together, necessarily imply that the appellate authority has the....

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....ntral 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 remand of the matter for fresh adjudication. For example, if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. This would create an anomaly and cause prejudice to the Revenue as it would bring an end to....