The appellate authority has the power to remand a matter to the original authority for making an inquiry afresh, even if the statute does not specifically provide for such a power.

( 1 ) THIS appeal is directed against the judgment of our learned brother, Seshachalapati J. refusing to issue a writ of prohibition against the Assistant Collector of Central Excise, Nellore, to forbear him from proceeding further with his enquiry and adjudication, in pursuance of the notice dated 19-6-1958.

( 2 ) THE facts relating to this appeal are susceptible of simple and concise statement. The petitioner is a firm dealing in the purchase and sale, of several varieties of leaf tobacco with a warehouse in Timmasamudram, a village in Guntur District. The Additional Deputy Superintendent (Central Excise) called upon the appellant, by his notice dated 4-10-1957, for contravening rules 151 and 151 (c) read with rule 141 of the Central Excise Rules, to show cause why 6895 1bs of tobacco should not be confiscated and also why a penalty under rule 151 (c) should not be levied.

( 3 ) THE appellant sent his explanation and also requested that he might be given a personal hearing.

( 4 ) THE Assistant Collector, Central Excise by his order dated 30-12-1957, held that 6895 1bs. of I. A. C. Natu noti tobacco should be seized. He also levied a penalty of Rs. 100. 00. As regards the confiscation, he allowed option to the appellant under Section 34 of the Central Excises and Salt Act, 1944, to pay Rs. 400. 00 as penalty in lieu of the confiscation. In addition to the penalty, a sum of Rs. 5,666-56 np. was imposed as duty payable by him under rule 160 of the Central Excise Rules.

( 5 ) AGGRIEVED by this order, the appellant carried the matter in appeal to the Collector, Central Excise, Hyderabad, raising various grounds, the chief of which was that the Assistant Collector failed to afford him a reasonable opportunity in that he omitted to accede to his request to give him a personal hearing. Without adjudicating upon tile merits the Collector allowed the appeal in the view that the Assistant Collector had not afforded a personal hearing to the appellant and, consequently, the demands of natural justice were not met in this case. In the result, he set aside the order of the Assistant Collector, Central Excise, on what are described as technical grounds.

( 6 ) AFTER the receipt of this order the Assistant Collector Central Excise, Nellore Division, issued another notice to the appellant on terms similar to those contained in the previous notice. It is this notice that led the appellant to file the petition for the issuance of writ of prohibition.

( 7 ) IT was contended before our learned brother, Seshachalapati J. , that the Assistant Collector had no jurisdiction to proceed with a fresh inquiry, having regard to Section 35 of the Central Excise Act. This contention did not find favour with the learned Judge with the result that the petition was dismissed with costs. It is this order that is how under appeal.

( 8 ) THE argument pressed upon us by Srimati Venkayamma, learned counsel for the appellant, is that under Section 35 of the Central Excise Act. the only power that is vested in the appellate authority is to confirm, alter or annul the decision or order appealed against and it is not competent for him to direct a fresh inquiry. As the controversy centres round the interpretation of Section 35, it is useful to reproduce it here. Section 35:-- (I) 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 front the date of sueh 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 by 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 th