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TMI Blog2012 (8) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... firming the demand & penalty and remanded the matter for denovo adjudication is not correct as that by an amendment to Section 35A of Central Excise Act, 1944 w.e.f. 11.5.2011, the power of remand has been specifically withdrawn by the legislature - the embargo on the power of remand in Section 35A is squarely applicable to the provisions of Section 85 of the Finance Act, 1994. X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed under Section 75A, 76 and 78 of the Finance Act, 1994. Aggrieved by the said Order, the Respondents had filed an appeal before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) set aside the order passed by the adjudicating authority and remanded the matter for denovo adjudication. Hence, the Revenue is in appeal. 4. The ld. A.R. appearing for the Revenue, has argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn by the legislature . The Hon ble Supreme Court in MIL India case (supra) has also held that the ld. Commissioner (Appeals) under the amended provision, does not have power to remand the case. No doubt, the appeal in question before ld. Commissioner (Appeals) relates to an appeal under Section 85 of the Finance Act, 1994, however, in view of Sub-section (5) of Section 85 of the Finance Act, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the lower adjudicating authority. However, on going through the findings of the ld. Commissioner (Appeals), I find that the issues considered therein are required to be examined by the adjudicating authority. In these circumstances, I remand the case to the adjudicating authority for deciding the issue afresh after considering all aspects of the matter. Needless to mention, an adequate opport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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