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TMI Blog2010 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... the above issue. I note that in the case of Commissioner v. Enkay (India) Rubber Co. Pvt. Ltd. [2008 (224) E.L.T. 393 (P & H)], the Hon'ble Punjab High Court held that power of remand of the Commissioner (Appeals) having been expressly taken away by the Finance Act, 2001, he is divested of the power to remand the case back to the adjudicating authority. The Bench concluded that there is expression of necessary intendment in deletion of the expression "or may refer the case back ...", by the Legislature under Section 128A(3) of the Customs Act, 1962. In the case of CCE, Jalandhar v. B.C. Kataria [2008 (221) E.L.T. 508 (P & H)], the High Court followed the ratio of the Division Bench judgment in the Enkay (India) Rubber Co. case (supra). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2001 w.e.f. 11-5-2001, the power of remand from the Commissioner (Appeals) has been taken away. The reliance of learned Counsel for the assessee-respondent on the judgment of Hon'ble the Supreme Court as has been relied upon by the Division Bench of Gujarat High Court in the case of Union of India v. Umesh Dhaimode, 1998 (98) E.L.T. 584 (S.C.), is also not acceptable because in that case Hon'ble the Supreme Court was not dealing with a provision where earlier power of remand was given and by amendment that power was taken away. The short order by their Lordships' in Umesh Dhaimode's case (supra) is as under :- "The then Judicial Commissioner,Goa,DamanandDiu, took the view that Section 128(2) of the Customs Act, 1962, as it then read, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships were not dealing with a situation where earlier the power of remand was specifically conferred and by amendment it was taken away, which is the situation in the case in hand. It is for the afore-mentioned reason that this Court in the case of M/s. Enkay (India) Rubber Co. Pvt. Ltd. (supra) has concluded that there is necessary intendment available which has been expressed through amendment that the legislature did not prefer the Commissioner (Appeals) to exercise the power of remand. Therefore, with utmost respect to the Division Bench of Gujarat High Court we are unable to persuade ourselves to apply the judgment of Hon'ble the Supreme Court in Umesh Dhaimode's case (supra) to the facts of the present case, as has been done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of the Tribunal in Clestra Modular Systems (supra), I agree with the Revenue that the Commissioner (Appeals) has no power to remand the case back to the original authority w.e.f.11-5-2001. However, re-quantification of the service tax payable by the assessees under Section 73(2) of the Finance Act by excluding the service tax demanded on light motor vehicles in question for the period prior to 1-7-2003 and re-quantification of penalty equal to the demand after re-quantification, is required to be carried out and, for this purpose, I remit the case to the adjudicating authority for fresh decision after extending a reasonable opportunity to the assessees of being heard in their defence. 4. The appeal is thus allowed by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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