TaxTMI 
TaxTMI 
2019 (1) TMI 55
X X X X Extracts X X X X
X X X X Extracts X X X X
....ling the appeal before this Tribunal, is condoned. The Miscellaneous Application (COD) is allowed. 3. With the consent of both sides, the present appeal filed by the Revenue is being taken up for final disposal. 4. This appeal is directed against the Order-in-Appeal No.634/HWH/CE/2017-18 dated 12.03.2018, whereby the Commissioner (Appeals) has set aside the Order-in-Original and remanded the matter back to the lower authority for adjudication afresh. 5. The Respondent-Assessee has also filed Cross Objection in terms of sub-section (4) of Section 35B of the Central Excise Act, 1944. 6. The only ground of the Appellant Revenue is that after amendment of Section 35A (3) of the Central Excise Act, 1944, by the Finance Act, 2001, the power o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. Umesh Dhaimode reported as 1998 (98) ELT 584 (S.C.), wherein the Hon'ble 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. Relevant observations of the Hon'ble Supreme Court is 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 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the matter of Union of India v. Umesh Dhaiamode (supra) based on the 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 remand of the matter for fresh adjudication. For example, if the order-in-original is passed with....