9911796707
TMI Blog2022 (7) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... he litigation who is the master of its litigation, the request of withdrawal as made by the appellant-Department is hereby accepted. Power of Commissioner (Appeals) to remand - HELD THAT:- On perusal of Section 35A(3) of Central Excise Act 1944, makes it clear that the provision do not extend power of remand to the Commissioner (Appeals). Also from the order of Commissioner (Appeals) in para 14 thereof he has specifically acknowledged the entitlement of the appellant to seek the impugned refund. It is observed that the order of Commissioner (Appeals) has committed apparent non-compliance of statutory provisions (Section 35 A of CEA) the same amounts to be an error apparent on the face of the said order. Hence, while accepting the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is impressed upon and accordingly, the present appeal is prayed to be dismissed as withdrawn. 2. Ld. Counsel for the appellant has mentioned that vide the impugned appeal the Department has challenged the power of remand with Commissioner (Appeals). It is further submitted that the Commissioner (Appeals) has otherwise accepted the respondent-assessee s contention that the impugned amount (the refund whereof was prayed) i.e. the balance available credit to be eligible for a claim of refund. It is submitted that despite accepting the said contention, Commissioner (Appeal) has remanded the matter to original adjudicating authority for making certain verifications. The ld. Counsel further submitted that the assessee did not file any ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal already filed before this Tribunal is found to be less than Rs.50.00 Lakhs, the Department is supposed to seek withdrawal of the said appeal. Keeping in view the same and the fact that without following the monetary limits the proper jurisdiction of this Tribunal shall be affected, also keeping in view that the appeal is filed by the Department, the first party of the litigation who is the master of its litigation, the request of withdrawal as made by the appellant-Department is hereby accepted. 4. However, keeping in view the submissions of the appellant and the fact that the grievance of the appellant with respect to the order of Commissioner (Appeals) in the impugned appeal is same as is the grievance of the Department in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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