- (1.) The revenue has filed the instant appeal under Section 130 of the Customs Act, 1962 (for brevity, the Act'), against the order dated 23-1-2006, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (A-1) in Appeal No. C/181/05-NB(SM), dated 20-2-2006, upholding the orders of the Commissioner (Appeals), dated 25-11-2004 (A-2 & A-3), directing the Adjudicating Authority to reconsider the matter in so far as the value of pre-imported goods is concerned. The following substantial questions of law are raised in the appeal : "(a) Whether after a conscious interference by the legislature to do away with the power of remand by the Commissioner (Appeals) vide amendment to Section 35A of the Central Excise Act, 1944 w.e.f. 11-5-2001 under the Finance Bill, 2001 and after removal of the words or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision' from Section 128 of the Customs Act, the Commissioner (Appeals) has any power to remand back a case to the adjudicating authority? (b) Whether the Commissioner (Appeals) has no powers to remand back cases to the adjudicating authority under Section 128 of the Customs Act, 1962 ?"
(2.) With the consent of learned Counsel for the parties the appeal has been heard for final disposal for determination of the above referred substantial questions of law. The short issue raised before us by the learned Counsel for the Revenue is that 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 . The later provision came into effect from 11-5-2001. Relevant provisions of the Act as existed before the amendment dated 11-5-2001 and thereafter, are extracted below for ready reference :- Section 128A(3) 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." Section 128A(3) 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.) Learned Counsel has submitted that by necessary intendment it has to be construed that there is no power of remand with the Commissioner (Appeals) under Section 128(3) and, therefore, the order passed by the Commissioner (Appeals) on 25-11-2004 is without jurisdiction as also the order passed by the Tribunal upholding the aforementioned order.;