The main legal point established in the judgment is that the Appellate Authority retains the power of remand even after the amendment to section 35A of the Central Excise Act.

ORDER :

Appellant by Shri T. C. Singhal, Advocate.

Respondent Department by Shri V. K. Sharma, Assistant Solicitor General.

Heard on the question of admission.

2. This appeal is filed by the appellant under section 35(G) of the Central Excise Act aggrieved by the order dated 16-10-2006 passed by the Customs, Excise And Service Tax Appellate Tribunal (CESTAT) in Appeal No. E/Appeal 56 of 2005 - SM whereby the Tribunal has dismissed the appeal filed by the appellant challenging the order dated 18-11-2004 passed by the Commissioner of Customs and Central Excise (Appeals), Gwalior in Appeal No. GWL/236/2004/2006.

3. Brief facts giving rise to this appeal are that the appellant is engaged in manufacture of spare parts of vehicles like brake drums, hubs etc. The appellant is having registration with the Central Excise Department under chapter sub-heading 8708.00,8716.00 and 7325 respectively. Officials of the Excise Department visited the appellant's factory on 16-1-1997 and found that they are manufacturing machined pieces of hubs and other articles bearing brand names. Metallic seals of different brand names used by the appellant were also found in the factory premises. Hence, show cause notice dated 15-9-1997 was issued to the appellant for imposing penalty. The adjudicating authority after hearing the parties on the show cause notice passed an order dated 6-4-1998 confirming the duty demanded and confiscated the seized goods on option to redeem the goods on payment of a redemption fine of Rs. 5000/- and penalty of Rs. 3,71,805.

4. Appellant preferred appeal aggrieved by the order of the adjudicating authority. The appeal preferred by the appellant before Commissioner of Appeals was on the ground that the adjudicating authority has no jurisdiction to pass orders. The Commissioner of Appeals vide order dated 18-11-2004 held that the order is without jurisdiction. Hence, he set aside the order passed by the adjudicating authority and remanded the matter back to the competent authority for de novo consideration.

5. This order was challenged by the appellant by preferring appeal before the CESTAT on the ground that the Commissioner of Appeals has no jurisdiction to remand the matter. The CESTAT dismissed the appeal by the impugned order, hence this appeal by the appellant under section 35G of the Central Excise Act (hereinafter referred to as the "Act").

6. Only contention raised by the learned counsel for the appellant is that the Appellate Authority has no jurisdiction to remand the matter and therefore, the order of remand passed by the Appellate Authority and the order passed by the CESTAT affirming the said order of remand are illegal and without jurisdiction.

7. For appreciating the argument raised by the learned counsel for the appellant, it is necessary to refer to section 35A of the Act which reads as under:

"Section 35A.

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) The Commissioner (Appeals) may, 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.

xxx xxx xxx"

8. Contention of the learned counsel for the appellant is that this section is amended with effect from 11-5-2001. Prior to amendment, powers of remand were specifically provided to the Appellate Authority, but after deletion of the word "remand" the Appellate Authority has no jurisdiction to remand the matter.

9. Question involved in this appeal is already considered by Division Bench of Gujarat High Court in the case of Commissioner of Central Excise. Ahmedabad vs. Medico Labs, 2004 (173) ELT. 117 (Guj.) and the Gujarat High Court has held that even after the amendment, the Commissioner of Appeals has jurisdiction to remand the matter. For this purpose, the Gujarat High Court has relied on a judgment of the Apex Court in the case of Union of India vs. Umesh Dhaimode. 1998 (98) ELT 584 (SC). In para 2 of the said judgment, the Apex Court has considered the phrase "annul