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TMI Blog2013 (3) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944 and it is apparent that the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3). No merit in the appeal filed by department. - E/855/2005 - A/1314/2012-EX(BR)(PB) - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35A(3) of the Central Excise Act and because of this reason he has referred to the judgment of Hon ble Gujarat High Court at Ahmedabad in the matter of CCE, Ahmedabad v. Medico Labs reported in 2004 (173) E.L.T. 117 (Guj.). Wherein Hon ble High Court has held that even after the amendment of Section 35A(3) Commissioner (Appeals) has continuous power to remand the matter. Thus learned Counsel urged for dismissal of appeal. 4. We have considered the rival contention and perused the relevant provisions of Customs Act, 1962 and the Excise Act as also the judgment relied upon by the parties. 5. Erstwhile Section 128A(2) of the Customs Act, 1962 and amended Section 35A(3) of the Excise Act respectively deals with the powers of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said matter was entirely different. However, the Supreme Court while dealing with the matter observed thus :- 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 powers of the Commissioner (Appeals) to remand matters back to the adjudicating authority for fresh consideration . 8. The aforesaid observation of the Supreme Court in the matter of MIL India Ltd. (supra) are in the nature of passing remarks on the scope of powers of Commissioner (Appeals) hearing an appeal under Section 35A(3). Therefore, afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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