9911796707
TMI Blog2007 (9) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of law in both the appeals:- "Whether Commissioner (Appeals) is still vested with the powers to remand back cases to the adjudicating authority consequent to the specific amendment in this regard carried out by the Finance Act, 2001 w.e.f. 11.5.2001." 2. After hearing learned counsel for the parties, perusing the Order-in-Original dated 23.3.2004, passed by the Adjudicating Authority (A-1), Order-in-Appeal dated 29.11.2004, passed by the Commissioner (Appeals) (A-2) and orders dated 14.3.2005 and 10.3.2005, passed by the Tribunal (A-3), we find that the matter is not res integra, inasmuch as, the same has already been decided in favour of the revenue by a Division Bench of this Court in the case of Commissioner of Customs, Amritsar v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt inthe cases of Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, (1999) 8 SCC 16; and Garikepadi Veeraya v. Subbiah Choudhry, AIR 1957 SC 540." The ratio of the judgment as extracted above clearly brings out that amendment in Section 35A(3) of the Act was carried in the same manner by the Finance Act, 2001 itself in Section 128A(3) of the 1962 Act and a perusal of both the provisions in juxta position would show that they are same before and after amendment, which is reproduced as under:- Section 128A(3) of the 1962 Act before amendment: Section 35A (3) of the Act before amendment: " The Commissioner (Appeals) may, after making such further inquiry as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erves to be allowed. We are not impressed with the argument raised by learned counsel for the assessee-respondent that the Commissioner (Appeals) would continue to enjoy power of remand after deletion of that power from Section 35A(3) of the Act, by amendment made by the Finance Act, 2001.We are of the considered view that reliance placed on the judgment of Gujarat High Court in the case of Commissioner of Central Excise, Ahmedabad-I v. Medico Labs, 2004 (173) E.L.T. 117 (Guj.), is wholly misplaced as the Division Bench of this Court, of which one of us (M.M. Kumar, J.) is a member, in the case of M/s Enkay (India) Rubber Co. Pvt. Ltd. (supra) has concluded that by necessary intendment expressed by amendment carried by Finance Act, 2001 w. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the authority below for fresh decision. 4. We may point out that the respondent has not appeared but has filed an affidavit which suggests that the Customs, Excise and Gold (Control) Appellate Tribunal had also taken the view that the appellate authority, on an application made to it by another person in the same position as the respondent, could not have remanded this matter. If that order of the tribunal remains in operation, the authority below shall, notwithstanding this order, not be entitled to proceed. 5. With this reservation, the appeal is allowed and the judgment and order under appeal is set aside. No order as to costs." It is, thus, evident from the perusal of judgment of Hon'ble the Supreme Court that their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
