9911796707
TMI Blog2007 (10) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties imposable under the Rules. 3. The adjudicating authority, on the basis of the material on record, found that, the goods ROTO yarn were liable to be confiscated and that Central Excise Duty was payable by the noticee no. 1, GPIL, on clandestine clearance of ROTO yarn. Penalty was imposed on both the noticees. The Appellate Commissioner, on the basis of the material on record, came to a finding that, despite repeated requests for supplying copies of the relevant record/documents for preparing defence reply, copies of the documents were given only after the order-in-original was made. It was, therefore, held that, an opportunity should be given to the respondent to plead their case as the copies of the resumed record were given to them after the issue of the order-in-original. 4. The learned authorised representative for the Department, strongly contended that, there was no power conferred on the Commissioner (Appeals) to make an order of remand under the provisions of Section 35-A(3) of the Act. It was submitted that, the power of remand, which was earlier specifically conferred, was taken away by the amendment made in Section 35-A(3) w.e.f. 11th May, 2001. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry as may be necessary, pass such order as he thinks fit, confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." (Emphasis added) 5.2 The provision of Section 35-A(3) was substituted w.e.f. 11-5-2001 by the Finance Act 14 of 2001, and the amended provision reads as follows : "35A Procedure in appeal - (1) ........ ......... ......... (2) ........ ......... ......... (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against." (Emphasis added) 5.3 It will thus be noticed that, prior to 1980, the wordings of the provision, conferring power to make appellate order, did not specifically incorporate words empowering the appellate authority to refer the case back to the adjudicating authority with directions, i.e., for making a remand. The wordings of sub-section 35-A(3) conferring power to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming, modifying or annulling the decision or order appealed against", as now contained in Section 128-A(3) after amendment w.e.f. 11-5-2001, is almost identical to the earlier provision contained in Section 128(2) prior to the amendment of 1980, which conferred power on the appellate authority to "pass such order as he thinks fit, confirming, modifying or annulling the decision or order appealed against". In both these provisions, there was no specific reference to the power of the appellate authority to refer the case back to the adjudicating authority, i.e. to make a remand, which was contained in Section 128(3) during the interregnum period. 7. It will be noticed from the above provisions, that the provision of Section 35-A(3), as amended w.e.f. 11-5-2001, with which we are concerned in the present case, is almost identical to the provision of Section 128(2) of the Customs Act, 1962, as it stood prior to the amendment of 1980. This aspect is important, because the Hon'ble Supreme Court has construed the provision of Section 128(2) of the Customs Act, as it stood prior to the amendment of 1980 in the case of Union of India v. Umesh Dhaimode reported in 1998 (98) E.L.T. 584 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to be removed w.e.f. 11-5-2001 by Finance Act 14 of 2001, was surplusage. In other words, when the power of remand was vested in the appellate authority by necessary implication, by virtue of the words "pass such order as he thinks fit, confirming, modifying or annulling the decision or order appealed against", there was no need to retain any express provision, which was added during the period between the insertion of Section 128-A(3) by the Finance Act 44 of 1980 and the substitution of Section 128-A(3) w.e.f. 14-5-2001 by the Finance Act 14 of 2001. Once the Hon'ble Supreme Court, in terms, laid down that, the power of remand was conferred by necessary implication, there remained no question of any legislative intent of taking away the power to remand w.e.f. 11-5-2001, when the provisions of Section 128-A(3) of the Customs Act and 35-A(3) came to be substituted. It would appear that, the express provision of remand was redundant in these two statutory provisions after the decision of the Hon'ble Supreme Court in the case of Union of India v. Umesh Dhaimode (supra), and that is why the specific expression relating to power of remand was unnecessary and came to be omitted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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