2019 (1) TMI 55 – CESTAT KOLKATA – TMI – Jurisdiction – power of Commissioner (Appeals) to remand the matter w.e.f.11.05.2001 – amendment of Section 35A (3) of the Central Excise Act, 1944, by the Finance Act, 2001 – interpretation of statute – Held that:- The similar issue on interpretation of the above provision, came up before the Hon’ble Supreme Court in the case of Union of India Vs. Umesh Dhaimode [1997 (2) TMI 140 – SUPREME COURT OF INDIA], 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.
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Thus, the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3) – appeal dismissed – decided against Revenue. – MA(COD)-76834/18 & CO-77270/18 & Ex. Appeal No.78122/18 – MO/76059/2018 & FO/A/77159/2018 – Dated:- 28-12-2018 – SHRI P.K. CHOUDHARY, JUDICIAL MEMBER Shri A.
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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 of Commissioner (Appeals) to remand the matter back for afresh adjudication, has been taken away w.e.f.11.05.2001. As such, the Commissioner (Appeals) had no justification to remand the matter back. 7. The ld.D.R. for the Revenue, submitted that as per pre-amended Section as well as amended Section 35A (3) of the Central Excise Act, 1944, the comparison of those two provisions would show that power to remand has been specifically dropped by way of the amendment. Accordingly, he prayed that the impugned order should be set aside. In support of his submission, he relies on the decision of the Hon ble Supreme Court in the case of MIL India Ltd. as reported in 2007 (210) ELT 188 (S.C.). 8. On the contrary, the ld.Advocate, has supported the impugned order. In support of his contention, he referred to the decision of the Hon ble Hi
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, 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 power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision. As regards the judgment in the case of MIL India Ltd. (supra) relied upon the ld.D.R. for the Revenue, I find that the issue before the Hon ble Supreme Court in deciding the matter, was entirely different. However, while dealing with the said matter, the Hon ble Supreme Court observed thus : In fact, the power of remand by the Commissioner (Appeals) has been taken away by amendin
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lf. 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 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 the liti
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