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2013 (1) TMI 276 - AT - Central ExcisePower to remand the matter by Commissioner (Appeals) u/s 35A(3) - back to the adjudicating authority Held that - Following the decision in case of MEDICO LABS. (2004 (9) TMI 108 - HIGH COURT OF GUJARAT AT AHMEDABAD) 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. Therefore despite of amendment in Section 35A(3), the Commissioner (Appeals) continues to have power of remand. Against revenue
Issues:
1. Jurisdiction of Commissioner (Appeals) to remand the matter back for re-adjudication. 2. Interpretation of Section 35A(3) of the Excise Act. 3. Impact of the amendment in Section 35A(3) on the power of the Commissioner (Appeals) to remand the matter. 4. Applicability of previous judgments on the power of remand by the Commissioner (Appeals). Issue 1: Jurisdiction of Commissioner (Appeals) to remand the matter back for re-adjudication: The appellant challenged the order of Commissioner (Appeals) which set aside the original order and remanded the matter for re-adjudication. The appellant contended that the remand order was without jurisdiction, citing the pre-amended Section 35A(3) which conferred the power to remand, a power allegedly taken away by the Finance Act, 1995. The appellant relied on the judgment of MIL India Ltd. v. C.C.E., Noida and a departmental circular to support the argument that the Commissioner (Appeals) no longer had the power to remand. Issue 2: Interpretation of Section 35A(3) of the Excise Act: The respondent argued that the power to remand was inherent in Section 35A(3) as it allowed the appellate authority to confirm, modify, or annul the decision appealed against and pass a just and proper order. The respondent cited the case of Union of India v. Umesh Dhaimode to support the contention that the appellate authority had the power to remand for a fresh decision. Issue 3: Impact of the amendment in Section 35A(3) on the power of the Commissioner (Appeals) to remand the matter: The appellant countered the respondent's argument by stating that the judgment relied upon was inapplicable to the case at hand as it pertained to a different provision of the Customs Act, 1962. The Tribunal analyzed the provisions of the Customs Act, 1962 and the Excise Act, noting that both sections defined the powers of the Commissioner (Appeals) in similar terms. The Tribunal referred to the Supreme Court's interpretation in UOI v. Umesh Dhaimode, emphasizing that the power to remand was inherent in the provision. Issue 4: Applicability of previous judgments on the power of remand by the Commissioner (Appeals): The Tribunal observed that despite the amendment in Section 35A(3), the Commissioner (Appeals) retained the power of remand. The Tribunal referred to the Gujarat High Court's decision in CCE, Ahmedabad v. Medico Labs, which upheld the Commissioner (Appeals)' power to remand even after the 2001 amendment. Consequently, the Tribunal dismissed the stay application, stating that granting a stay would cause unnecessary delays in the adjudication process. In conclusion, the Tribunal found that the Commissioner (Appeals) maintained the power of remand despite the amendment in Section 35A(3). The Tribunal's decision was based on the analysis of relevant provisions and previous judgments, emphasizing the need to avoid delays in the adjudication process.
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