2015 (12) TMI 61

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..... - we agree with the law laid down by the Hon'ble Supreme Court in the case of Umesh Dhaimode (supra) and also the law appreciated by the Hon'ble Gujarat High Court in the case of Medico Labs. (2004 (9) TMI 108 - HIGH COURT OF GUJARAT AT AHMEDABAD) and accordingly, we dismiss the Revenue s appeal. - Decided against Revenue.
SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P.S. PRUTHI, MEMBER (TECHNICAL) For the Petitioner : Shri M.S. Reddy, Dy. Commissioner (AR) For the Respondent : Shri Nikhil Rungta, Advocate ORDER Per: Anil Choudhary The Revenue is in appeal against order of the Commissioner (Appeals), wherein the Commissioner (Appeals) observing that Order-in-Original in question is an ex-parte order, where no show-cause notice w .....

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..... any question in dispute before the Tribunal. Further, the Revenue relied upon the ruling of the Punjab & Haryana in the case of CC, Amritsar vs. Emkay (India) Rubber Co. Pvt. Ltd. - 2008 (224) ELT 393 (P&H), wherein the Hon'ble High Court has held that by virtue of the 2001 amendment, the Commissioner (Appeals) have been divested of the powers to remand the case back to the adjudicating authority, after deletion of that power from Section 35A(3) of the Central Excise Act. Accordingly, prays for setting aside the impugned order. 3. The learned Counsel for the respondent assessee points out that the customs duty was paid on provisional basis under the scheme of Section 18 and the same was finalized under Section 18(2) of the Customs Act, .....

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..... appeal before the appellate authority. Therefore, we entirely agree with the view taken by the learned Single Member of the Tribunal that even after amendment of Section 35A or the Central Excise Act, the appellate authority has the power to set aside the decision, which is under appeal before it and it has power to remand the matter to the authority below for its fresh consideration. 15. In view of the above discussion, both these appeals fail and are hereby, dismissed." 3.1 It is further pointed out by the learned Counsel for the assessee that Section 128A deals with the power of Commissioner (Appeals), is now similar to the adjudicating authority who may refer the case back to the adjudicating authority with such directions as he may .....

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