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TMI Blog2009 (6) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... ]. After examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dismissing the stay application, I proceed to take up the appeal. 2. The respondent in this appeal of the Revenue filed a refund claim for an amount of Rs. 4.5 lakhs (redemption fine) and another amount of Rs. 2 lakhs (penalty) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. CCE, Noida - 2007 (210) E.L.T. 188 (S.C.), wherein Their Lordships observed inter alia as under :- In fact, the power of remand by the Commissioner (Appeals) 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 power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Commissioners would exercise the power of remand under Section 35A of the Central Excise Act and Section 128A of the Customs Act. 3. After giving careful consideration to the above arguments, I note that the short question to be settled in the first instance is whether the lower appellate authority had the power of remand when the impugned order was passed. That authority had such power pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r v. B.C. Kataria - 2008 (221) E.L.T. 508 (P H), wherein the case of Umesh Dhaimode (supra) was correctly distinguished. In the result, the legal position with regard to the powers of appellate Commissioners under Section 128A of the Customs Act and Section 35A of the Central Excise Act is very clear, which is to the effect that these appellate authorities have no power of remand w.e.f. 11-5-2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y successfully discharging their burden to show that the incidence of fine/penalty was not passed on to anybody else. Of course, if the decision on the first issue comes to be in the negative, there will be no question of crediting any amount to the consumer welfare fund. Needless to say that, on both the issues, the party should be given a reasonable opportunity of being heard. 4. The Revenue s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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