9911796707
TMI Blog2008 (9) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is that all the records and evidence were produced before the Commissioner (Appeals) but the Commissioner (Appeals) has not decided the matter as an Adjudicating authority. The learned Counsel submits that the Hon ble Apex Court in the case of MIL India Ltd. v. CCE [2007 (210) E.L.T. 188 (S.C.)] has examined the very issue in Paragraph 4 of the judgment and has held that the Commissioner (Appeals) has power to decide the matter without remanding the case on merits. The findings in Paragraphs 4 to 6 are reproduced herein below : 4. In our view the High Court had erred in holding that the Tribunal could not have examined the question of dutiability, once on merits, the order of the Commissioner (A) dated 22-3-2000 became final. Firstly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated cases where costing is involved the adjudicating authority can also refer the matter to an expert. The act also makes provision for special audit. However, when the principle of law is evolved an appeal lies to the appellate Tribunal under the said Act. In fact, the power of remand by the Commissioner (A) has been taken away by amending Section 35A with effect from 11-5-2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals) has inherent power to remand the matter and in this regard, he relies on the Hon ble Apex Court judgment rendered in the case of Union of India v. Umesh [1998 (98) E.L.T. 584 (S. C.)] 5. We have carefully considered the submissions made by both the sides. We notice that the citation referred to by the learned DR in the case of Union of India v. Umesh (supra) is not in accordance with the Act. In the light of the Hon ble Punjab and Haryana High Court judgment extracted above, we are of the considered view that the Commissioner (Appeals) has no power to remand the matter. The Commissioner (Appeals) has to act as an Adjudicating authority and to decide the case based on the entire materials and evidence placed before him. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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