M.M. Kumar, J. - (1.) This order shall dispose of C.E.A. Nos. 11 and 12 of 2006, which have been filed by the revenue under Sec. 35G of the Central Excise Act, 1944 (for brevity, 'the Act'), against the orders dated 14.3.2005 and 10.3.2005 respectively, passed by the Customs Excise & Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal'), in Appeal Nos. E/367/05 -NB -B and E/337/05 -NB -B, as common question of facts are involved. The revenue has raised following question 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. 11.5.201.
(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/s. Enkay (India) Rubber Co. Pvt. Ltd. (CUSAP No. 20 of 2006, decided on 8.3.2007). In the case of M/s Enkay (India) Rubber Co. Pvt. Ltd. (supra) the revenue has raised the issue as to whether the power of remand, which was earlier conferred on the Commissioner (Appeals) by the Finance Act, 1980, was specifically taken away by the Finance Act, 2001 by amending the provisions of Sec. 128(3) of the Customs Act, 1962 (for brevity, 'the 1962 Act'). Those provisions are pari materia to Sec. 35A(3) of the Act before and after amendment. A Division Bench of this Court after referring to un -amended as well as amended provisions of Sec. 128A(3) of the 1962 Act has held as under: After hearing learned Counsel for the parties, we find that there is merit in the contention raised on behalf of the Revenue. Once the power of remand has been expressly taken away by the Finance Act, 2001, which came into operation w.e.f. 11.5.2001, the Commissioner (Appeals) is divested of power to remand the case back to the Adjudicating Authority. It cannot be argued that the power of remand should still be read into the provision which survive after deleting the words 'or may refer the case back to the adjudicating authority with such directions as he may think fit for fresh adjudication or decision'. There is expression of necessary intendment in deletion of the aforementioned expression by the Legislature. In that regard we place reliance on the judgments of Hon'ble the Supreme Court in the cases of Hitendra Vishnu Thakur v/s. : 1995CriLJ517 ; Maharaja Chintamani Saran Nath Shahdeo v/s. : AIR1999SC3609 ; and Garikepadi Veeraya v/s. : [1957]1SCR488 .
(3.) The ratio of the judgment as extracted above clearly brings out that amendment in Sec. 35A(3) of the Act was carried in the same manner by the Finance Act, 2001 itself in Sec. 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: Sec. 128A(3) of the 1962 Act Sec. 35A(3) of the Act before before amendment: 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: Section 128A(3) of the 1962 Act after amendment: (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: (3) 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: Section 35A(3) of the Act after amendment: (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:;