1. Does the Commissioner (Appeals) have the power to remand the case to the adjudicating authority after amendment of section 35A(3) of the Central Excise Act, 1944 by the Finance Act, 2001 with effect from 11-5-2001?

2. I have heard both sides on the appeal involving the above issue. I note that in the case of Commissioner of Customs v. Enkay (India) Rubber Co. (P.) Ltd. 2008 (224) ELT 393 (Punj. & Har.), the Hon'ble Punjab High Court held that power of remand of the Commissioner (Appeals) having been expressly taken away by the Finance Act, 2001, he is divested of the power to remand the case back to the adjudicating authority. The Bench concluded that there is expression of necessary intendment in deletion of the expression "or may refer the case back ...", by the Legislature under section 128A(3) of the Customs Act, 1962. In the case of CCE v. B.C. Kataria 2008 (221) ELT 508 (Punj. & Har.), the High Court followed the ratio of the Division Bench judgment in the Enkay (India) Rubber Co. (P.) Ltd.'s case (supra). The Bench held that reliance placed on the judgment of the Hon'bIe Gujarat High Court in CCE v. Medico Labs 2004 (173) ELT 117 holding that Commissioner (Appeals) continues to have the power of remand even after amendment to section 35A(3) of the Central Excise Act, was misplaced. The Bench distinguished the Apex Court's decision in Union of India v. Umesh Dhaimode 1998 (98) ELT 584, relied upon by the Gujarat High Court in Medico Labs' case (supra), on the ground that the Apex Court was not dealing with the provision where the earlier power of remand was given and by amendment, that power was taken away. The relevant extract from the Punjab and Haryana High Court judgment in the B.C. Kataria's case (supra) is reproduced herein below :—

"5. We are not impressed with the argument raised by learned Counsel for the assessee-respondent that the Commissioner (Appeals) would continue to enjoy power of remand after deletion of that power from section 35A(3) of the Act, by amendment made by the Finance Act, 2001. We are of the considered view that reliance placed on the judgment of Gujarat High Court in the case of Commissioner of Central Excise v. Medico Labs 2004 (173) ELT 117 (Guj.), is wholly misplaced as the Division Bench of this Court, of which one of us (M.M. Kumar, J.) is a member, in the case of Enkay (India) Rubber Co. (P.) Ltd. (supra) has concluded that by necessary intendment expressed by amendment carried by Finance Act, 2001 with effect from 11-5-2001, the power of remand from the Commissioner (Appeals) has been taken away. The reliance of learned Counsel for the assessee-respondent on the judgment of Hon'ble the Supreme Court as has been relied upon by the Division Bench of Gujarat High Court in the case of Union of India v. Umesh Dhaimode 1998 (98) ELT 584 (SC), is also not acceptable because in that case Hon'ble the Supreme Court was not dealing with a provision where earlier power of remand was given and by amendment that power was taken away. The short order by their Lordships' in Umesh Dhaimode's case (supra) is as under :—

The then Judicial Commissioner, Goa, Daman and Diu, took the view that section 128(2) of the Customs Act, 1962, as it then read, did not vest the appellate authority with the power to remand. Accordingly, he set aside such order and the Revenue is in appeal.

2. As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision, read together, 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 be