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TMI Blog2024 (10) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Act, 1994. In view of the Section 35A of CEA, the learned Commissioner (Appeals) is mandated to make such order as he deems just proper, confirming, modifying or annulling the decision or order appealed against. In view of the above said provisions it is deemed to remand the matter to be decided by the learned Commissioner (Appeals) instead of remanding it back to the Original Authority. The said observation is made in interest of justice for the reason that by remanding the matter back to original authority the appellant is forced into another round of litigation at the level of adjudicating authority, which could be avoided and which was the objective of amendments made in Section 35A of the Central Excise Act, 1944 by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific provisions in the Section 35 appearing such remand provided for a decision in the matter by modifying, upholding and annulling the order appealed against. Though, he has a good case on limitation. 2.3 Learned Authorized Representative reiterates the findings recorded in the impugned order. 3.1 I have considered the impugned order alongwith submissions made in the appeal and during the course of arguments. 3.2 Section 35A(3) of the Central Excise Act provides as follows:- SECTION 35A. Procedure in appeal. (1) (2) .. (3) [The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against :] Provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944). From perusal of above provisions, it is quite evident that powers of Commissioner (Appeal) in the matters relating to the Appeal, filed before him under the Central Excise Act, 1944 and under Finance Act, 1994 are identical. Subsection (5) of Section 85, make these powers co-terminus with the powers available under the Central Excise Act, 1994. 3.3 Power to remand the matters back to original authority was specifically provided for by Section 35A (3) prior to amendments made in the said section by the Finance Act, 2001. When the said amendment withdrawing the power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Ld. Commissioner (Appeals) has been taken away by amended Section 35A w.e.f. 11-5-2001 under the Finance Act, 1994. For the better appreciation whether the above decision is applicable to the instant case the relevant provisions of law are extracted hereunder : Sub-section (3) of Section 35A before amendment The Commissioner (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary . However the situation has changed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter by himself . Thus in case of service tax also, the Commissioner (A) is not empowered to remand the matter, he has to decide the matter by himself. Therefore the order of ld. Commissioner (Appeals) remanding the case to the lower authority, is not sustainable. However, We agree with the findings of the ld. Commissioner (Appeals). Therefore, the amendment to Section 35A would apply to the present case. However, we find that the above aspects are required to re-examined by the lower adjudicating authority. Accordingly, we remand the matter to the lower adjudicating authority for deciding the issue afresh. It is made clear that all the issues are kept open. Needless to say, a reasonable opportunity of hearing may be given to the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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