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TMI Blog2003 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion between two Benches of this Tribunal on the issue. A learned Single Member of East Regional Bench took the view in CCE & Customs, Bhubaneshwar v. Indian Aluminium Co. - 2002 (144) E.L.T. 97 (T) = 2002 (50) RLT 92 that even after the amendment the Commissioner (Appeals) has inherent power to remand the matter to the original adjudicating authority for de novo consideration. The Referring Bench agreed with the above view. But it was noted that a Division Bench of Bombay Bench of this Tribunal has taken a different view in Vipor Chemicals Pvt. Ltd. v. Commissioner of Customs, Mumbai - 2002 (144) E.L.T. 385. It was held therein that after the amendment w.e.f. 11-5-2001 the Commissioner (Appeals) will have no power of remand. 2. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s :- "35. Appeals, (1) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made thereunder may, within three months from the date of such decision or order, appeal therefrom to the Central Board of Revenue, or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf the Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against : Provided that no such order in appeal shall have the effect of subjecting any person to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order." 4. A specific provision granting power of remand to the Commissioner (Appeals) was thus incorporated in sub-section (3). 5. By Section 128A of the Finance Act, 2001 sub-section (3) of Section 35 A was substituted w.e.f. 11-5-2001 as follows :- "SECTION 35A, Procedure in Appeal. - (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." 6. Under the above amendment the power of remand which had been granted to the Commissioner (Appeals) specifically by Finance Act, 1980 was taken away. Similar is the legislative history of Sections 128 and 128A of the Customs Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision read together, it was held, would necessarily imply that the appellate authority has the power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision. 8. It is true that wording of the present section after the amendment under the Finance Bill, 2001 is more or less similar to pre 1982 position. But we find merit in the contention raised on behalf of the Revenue that when there is conscious action on the part of the legislature to do away with the power of remand by the Commissioner (Appeals) under the Finance Bill, 2001 Tribunal will not be justified to give an interpretation that the Commissioner (Appeals) would still retain power of remand as an inherent powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time when the law was passed and which necessitated the passing of that law. For the limited purpose of appreciating the background and the antecedent factual matrix leading to the legislation, it is permissible to look into the Statement of Objects and Reasons of the Bill which actuated the step to provide a remedy for the then existing. In the above case reliance was placed on what was mentioned in the Notes and Clauses but not on the memorandum explaining the provisions under the Finance Bill. In K.P. Varghese v. Income Tax Officer, Ernakulam - AIR 1981 (S.C.) 1922 the Apex Court took the view that the speech made by the Finance Minister while moving the amendment introducing Section 52(2) of the Income Tax Act by way of adding su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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