TaxTMI 
TaxTMI 
2012 (6) TMI 796
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.... fresh decision after considering the assessee's claim for abatement after giving him proper opportunity of being heard. 2. The impugned order has been assailed on the sole ground that the Commissioner (Appeals) has no power to remand the matter back to the adjudicating authority for fresh adjudication, after the amendment of Section 35A of the Central Excise Act, 1944 by virtue of Section 128A(2) of the Finance Act, 2001. Respondent in his reply filed as Cross-objection has submitted that appeal is liable to be rejected as it has been filed against the finding of the High Court of Gujarat holding that Commissioner (Appeals) under Section 35A of the power to remand the case back for re-adjudication. Since only legal issue has been rais....
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....ppellate authority to confirm, modify or annul the decision or order appealed against and pass an order which is thinks to be just and proper. Ld. Counsel submits that an order of remand necessarily annul the decision and the appellate authority is also vested with the power to pass just and proper order. If both these portion of Section 35A( 2) are read together, it necessarily imply that appellate authority has power to satisfy the decision under appeal and to remand the matter for fresh decision. In support of this contention ld. Counsel for the respondent has relied upon in the matter of Union of India vs. Umesh Dhaimode reported in 1998 (98) ELT 584 (SC) . 5. Countering the argument of the respondent Sh. R.K. Verma , AR for the depart....
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....ss 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 power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision." 9. As regards the judgement in the matter of MIL India Ltd. (supra) relied upon by the department, we may note that issue before the Supreme Court in the said matter was entirely different. However, the S....