Commissioner of Central Excise Vs. New India Metal Industries

2. the appeal no. e/410/03 is filed by the department aggrieved by the order of the commissioner (appeals) in expunging the remarks in the or-der-in-original. according to the department, this power of expunging the remarks is not vested with the commissioner (appeals) under sub-section 3 of section 35a of the central excise act, 1944. the said provision reads that the commissioner (appeals) may, after making such further enquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against.3. the plain reading of the above provision clearly indicates that the commissioner has power either to confirm, modify or annul the decision or order appealed before him. the expunging of remarks in the order-in-original or decision before him amounts to modification of the order, but nothing else. in other words, the above referred provision also empowers the commissioner (appeals) to expunge any decision or finding or observation made by the lower authority, which he considers irrelevant or illegal in the circumstances of the case facts.furthermore, the expunction herein i.e. the assessee was successful before this tribunal vide another appeal no. e/3673/03, wherein the tribunal has considered awarding interest on the payment due to the assessee. therefore, in view of the tribunal's decision, the present appeal filed by the department is not sus-tainable.4. the other appeal no. e/327/03-mum. is filed by the assessee assailing the order of the commissioner (appeals) in rejecting the interest claim. as stated supra as this tribunal considered the plea of the appellant (assessee) in respect of interest in some other appeal, this appeal became infructuous. thus, the first appeal is disposed of as not sustainable one and the second appeal as infructuous.consequently, the departmental appeal is rejected and the appeal filed by the assessee is infructuous. both appeals are disposed off accordingly.