2010 (9) TMI 362 - AT - Service Tax

Remand - Commissioner (Appeals) in exercising his power under Section 85, same powers as that of Commissioner (Appeals) under the Central Excise Act, even though the provisions of Section 35A have not been specifically made applicable under the Finance Act, Section 85(5) - Commissioner (Appeals) power of remand has been taken away with the amendment to Section 35A of the Central Excise Act, 1944 - Commissioner (Appeals) under Section 85 also does not have any power of remand - contravention of the principles of natural justice order set aside

Summary

Issues:
1. Power of Commissioner (Appeals) to remand the case under Section 85 of the Finance Act, 1994.
2. Applicability of Section 35A of the Central Excise Act to Service tax under the Finance Act, 1994.

Analysis:
1. The judgment deals with the issue of the power of the Commissioner (Appeals) to remand the case under Section 85 of the Finance Act, 1994. The Commissioner (Appeals) set aside the adjudication orders passed by the Assistant Commissioner due to a violation of natural justice and remitted the case for a fresh decision after granting a personal hearing to the assessees. The Revenue argued that the Commissioner (Appeals) lacked the power to remand the case under Section 85, citing Section 85(5) which states that the Commissioner (Appeals) can exercise powers similar to those under the Central Excise Act, 1944. The Revenue contended that the power of remand by the Commissioner (Appeals) under the Central Excise Act had been removed by an amendment to Section 35A.

2. The second issue addressed in the judgment concerns the applicability of Section 35A of the Central Excise Act to Service tax under the Finance Act, 1994. The counsel for the assessees argued that Section 35A of the Central Excise Act was not made applicable to Service tax, as evidenced by Section 83 of the Finance Act, 1994. However, the Tribunal found merit in the Revenue's argument, stating that even though Section 35A was not explicitly made applicable under the Finance Act, Section 85(5) clarified that the Commissioner (Appeals) under Section 85 would have similar powers as under the Central Excise Act. Consequently, the Commissioner (Appeals) did not possess the power of remand. Despite this, recognizing the violation of natural justice, the Tribunal allowed the appeals by remanding the cases for a fresh decision by the adjudicating authority after providing a reasonable opportunity for the assessees to present their defense.

In conclusion, the judgment clarifies the powers of the Commissioner (Appeals) under Section 85 of the Finance Act, 1994, in remanding cases and highlights the applicability of provisions from the Central Excise Act to Service tax matters.