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TMI Blog2004 (9) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Single Member of the Appellate Tribunal taking view against the department, then the Commissioner (Appeals) continues to have the power of remand even after the Section 35(A)(3) of the Central Excise Act, 1944 by Finance Act, 2001, then the first question does not remain to be decided as substantial question of law. We must also state that even after amendment, which has come into force with effect from 11-5-2001, powers of remand by allowing the appeal of the Commissioner (Appeals) have not been taken away specifically. In that view of the matter, we are of the considered opinion that the appellate authority viz. Commissioner (Appeals) was vested with the power while deciding the appeal as he deemed fit by confirming, modifying or annulling the decision or order appealed against him. In our considered opinion, order of remand necessarily annuls the decision, which is under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to oversight the excess duty paid by them was not charged by the Customs, and only the invoice value inclusive of Central Excise duty was charged by them and initially the ACCE had sanctioned refund of Rs. 85,812/- and the remaining claim of Rs. 34,978/ - was dismissed as having become time-barred. Accordingly, they were paid Rs. 60,927/- by cheque and remaining amount of Rs. 24,885/- as credit in RG 23A Pt.-II and thereafter thev were served with show cause notice for recovery of previous refund. It was submitted that at the relevant point of time ACCE had already examined the case on merits and found that his predecessor in office had examined the issue of unjust enrichment before sanctioning refund claim and accordingly he withdrew the show cause notice. 5. Considering the facts and circumstances of the case and the material on record as well as submissions made by the appellant, the Commissioner (Appeals), Central Excise, Ahmedabad allowed the appeal and set aside the order in original passed by the adjudicating authority and sent it for de novo consideration by remanding the matter to the adjudicating authority on the ground that the refund claim was earlier sanctioned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been framed by the appellant in both these appeals :- (i) Whether the Commissioner (Appeals) continues to have the power of remand even after the amendment of Section 35A(3) of the Central Excise Act, 1944, by Finance Act, 2001? (ii) Whether a single member Bench can overrule a decision of the Larger Bench decision on the same issue? We will deal with the second question first. In view of the difference of opinion between two benches of the Appellate Tribunal on the issue as the Single Member of East Regional Bench took view in CCE Customs, Bhubaneshwar v. Indian Aluminium Co. - 2002 (144) E.L.T. 97 (T) that even after the amendment the Commissioner of Appeals has inherent power to remand the matter to the original adjudicating authority for de novo consideration. The referring Bench agreed with the same view. But it was noted that a Division Bench of Mumbai Bench of the Tribunal had taken a different view in Vipor Chemicals Pvt. Ltd. v. Commissioner of Customs reported in 2002 (144) E.L.T. 385 and held that after amendment with effect from 11-5-2001 the Commissioner (Appeals) had no power of remand, the Larger Bench of the Appellate Tribunal was called upon to decide the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant-Commissioner of Central Excise, Ahmedabad in both these appeals has annexed the order dated 12-5-2003 passed by the Tribunal in other cases. From the said judgment of Larger Bench of the Appellate Tribunal, it clearly appears that heavy reliance was placed by the Tribunal on the judgment of the Hon'ble Supreme Court in cases of (i) Shashikant Laxman Kale v. Union of India - AIR 1990 SC 2114 (ii) K.P Verghese v. ITO, Ernakulam - AIR 1981 SC 1922 for coming to the conclusion that in appeal Commissioner (Appeals) has no power to remand the case. 11. With utmost respect to the Larger Bench of the Appellate Tribunal, it had not considered the later judgment of the Hon'ble Supreme Court in case of Union of India v. Umesh Dhaimode - 1998 (98) E.L.T. 584 (S.C.). Relying on this decision of Umesh Dhaimode (supra) the learned Single Member of the Appellate Tribunal, in our considered opinion, rightly held that he was bound by the judgment of the Apex Court rather than the judgment of the Larger Bench of the Tribunal. He was bound to follow the judgment of the Hon'ble Supreme Court, which he did and rightly held that the Commissioner (Appeals) Continues to have the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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