Per Justice K.K. Usha : The question referred for consideration by the Larger Bench is whether Commissioner (Appeals) does have jurisdiction to remand the appeal before him after the amendment to Section 35-A by the Finance Act, 2001 w.e.f. 11.5.2001. Reference was necessitated in view of difference of opinion between two Benches of this Tribunal on the issue. A learned Single Member of East Regional Bench took the view in CCE Customs Bhubaneshwar Vs. Indian Aluminium Co. 2002 (50) RLT 92 that even after the amendment the Commissioner (Appeals) has inherent power to remand the matter to the original adjudicating authority for de novo consideration. The Referring Bench agreed with the above view. But it was noted that a Division Bench of Bombay Bench of this Tribunal has taken a different view in Vipor Chemicals Pvt. Ltd. Vs. Commissioner of Customs, Mumbai 2002 (52) RLT 105 (CEGAT)=2002 (144) ELT 385. It was held therein that after the amendment w.e.f. 11.5.2001 the Commissioner (Appeals) will have no power of remand.

2. In CCE Customs, Bhubaneshwar Vs. Indian Aluminium Co. learned Single Member had placed reliance on two decisions of the Andhra Pradesh High Court in M/s. Thimmasamudram Tocacco Co. Vs. Assistant Collector of Central Excise AIR 1961 (Andhra Pradesh) 324 and Narsingha State Transport Authority 1958 Andhra Law Times 627 along with decision of the Supreme Court in UOI Vs. Umesh Dhaimode 1998 (98) ELT 584 before introducing specific provision giving power of remand in the year 1982 can be given to the present section after the amendment under the Finance Act, 2001 which came into force on 11.5.2001. On the other hand, the learned DR would contend that when a specific power given under the statute was taken away by way of amendment in Finance Act 4/2001 one cannot go back to the meaning given to Section 35 of the Central Excise or 128(2) of the Customs Act by the Court as it would be against the legislature's intention. In support of the above contention he placed reliance on Notes on Clauses on the amendment to Section 35A of the Central Excise Act and 128-A of the Customs Act in the Finance Bill of 2001. He submits that the Notes on Clauses would clearly show that the Legislature intended to take away power of remand from the Commissioner (Appeals).

3. We will now refer to the legislative history of the appellate power of the Commissioner (Appeals). Section 35(1) as it stood before 11.10.82 contained the provisions regarding the appellate power. It reads as follows:-

"35. Appeals, (1) 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 from the date of such 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 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 the effect of subjecting any person to any greater confiscation than has been adjudged against him in the original decision or order."

Under the Finance Act, 1980 Chapter IVA was introduced and the procedure in appeal was brought under Section 35A. Relevant provisions regarding the appellate power of Commissioner (Appeals) after amendment which came into force on 11.10.82 reads as follows:-

"35-A. Procedure in appeal - (3) The Collector (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 ma