2018 (7) TMI 1665

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....authority and remanded the matter to the adjudicating authority to decide the issue afresh. The only contention of the Revenue is that as per amended provision of Section 35A of Central Excise Act, the power of remand by the Commissioner (Appeal) has been withdrawn w.e.f. 11/05/2001. Therefore, Commissioner (Appeal) has no power to remand. The Revenue also relied upon the decision of the Hon'ble Supreme Court in case of M/s. MIL India Ltd. Vs. Commr. of Central Excise, Noida [2007 (210) ELT 188 (S.C.) and the decision of Punjab and Haryana High Court in case of Enkay India [2007-TIOL-152-HC-P&H-CUS) and Dhillon Kool Drinks and Beverages Ltd. [2007-TIOL-524-HC- P&H-CX & 2007-TIOL- 672-HC- P&H-CX and that the issue was no longer res integra a....

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....power do exist with the Commissioner (Appeal) in their following judgement of Commr. of Central Excise, Ahmedabad-I Vs. Medico Labs.[2004 (173) ELT 117 (Guj.). 4. Further, it is also the fact that this Tribunal, vide its order dated 26/02/2009 in case of Commr. of Central Excise, JSR Vs. Tata Steel , JSR (order No. A-65/KOL/2009 dated-26/02/2009) has held that Commissioner (Appeal) has power to remand the matter to the Adjudicating authority following the Gujrat High Court judgement in case of Medico Labs. (supra) even after amendment. This order was passed by the then Hon'ble Vice President Shri S.S. Kang. The Department has preferred the appeal against this order as per the appeal memorandum. 5. Ld. D.R. has brought to our attention....

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....by amendment made in Finance Act, 2001. We find that this issue has been finally decided after considering the conflicting judgements on the issue by the Larger Bench in case of Commissioner of Central Excise , Bhubaneswar Vs. Oripol Industries [2003 (155) ELT 278 (LB)] wherein in para 12 it is held that: "......12.In the light of the above, we are inclined to agree with the view taken by the West Regional Bench in Vipor Chemicals Ltd. v. Commissioner of Customs, Mumbai - 2002 (144) E.L.T. 385 and disagree with the view taken by the East Regional Bench in CCE & Customs, Bhubaneshwar v. Indian Aluminium Co. - 2002 (144) E.L.T. 97 (T) = 2002 (50) RLT 92. The question referred is answered as above and the appeals are sent to original Bench ....