2005 (5) TMI 644 - AT - Central Excise

Summary

Issues:
1. Whether the Commissioner of Appeal has the power to remand after the Finance Act 2001.

Analysis:
The judgment revolves around the issue of whether the Commissioner of Appeal retains the authority to remand a case post the amendment of Section 35A(3) by the Finance Act 2001. The Appellant's representative argues that a Larger Bench has opined against the Commissioner's remand power post the said amendment. However, the Respondent cites a judgment from the Gujarat High Court concerning the case of Commissioner of Central Excise, Ahmedabad - I Vs. Medico Labs, which asserts that the Commissioner of Appeal does possess the power of remand even after the amendment. The Gujarat High Court further emphasizes that the Larger Bench's decision was not in alignment with the Supreme Court's ruling in the case of Union of India Vs. Umesh Dhaimode. The Gujarat High Court's judgment concludes that in case of a conflict between the Supreme Court's decision and the CESTAT Larger Bench's decision, the former prevails, making the Larger Bench's decision per incuriam and hence, ignorable under Article 141 of the Constitution of India.

The Tribunal, after considering both arguments, aligns with the Gujarat High Court's decision and the Supreme Court's ruling. It concurs that the Commissioner of Appeal indeed retains the power to remand even after the amendment of Section 35A(3) of the Central Excise Act by the Finance Act 2001. Consequently, the Tribunal finds the Commissioner's order of remanding the matter to the Lower Authority to be legally sound and in accordance with the law. Thus, the appeal is dismissed based on this interpretation and application of the law.