2011 (1) TMI 116 - AT - Service Tax

Refund claim - Power to remand - Commissioner (Appeals) has no power to remand the matter subsequent to the amendment of Section 35A with effect from 11.5.2001 - respondents have produced the documents in support of their refund claims for the first time before the Commissioner (Appeals) and he has remanded the matter for getting these documents examined by the original authority - order of the Commissioner (Appeals) set aside and the order of the original authority and remand the matter to the original authority for fresh consideration after examining the documents produced by the respondents before the Commissioner (Appeals) and after granting a reasonable opportunity of hearing to the respondents

Summary

Issues:
- Commissioner's power to remand post-amendment of Section 35A
- Validity of remand by Commissioner (Appeals)

Analysis:
1. Commissioner's power to remand post-amendment of Section 35A:
The appeals were filed against an order-in-appeal where the Commissioner (Appeals) set aside the original authority's decision and remanded the matter for fresh consideration. The department contended that the Commissioner (Appeals) lacked the power to remand post-amendment of Section 35A. Citing the Supreme Court decision in the case of MIL India Ltd, it was argued that such remand was impermissible. However, upon review, the Tribunal affirmed that indeed, the Commissioner (Appeals) does not possess the authority to remand matters subsequent to the amendment of Section 35A from 11.5.2001. The respondents had submitted additional documents for refund claims before the Commissioner (Appeals), leading to the remand decision. Consequently, the Tribunal deemed it appropriate for the original authority to examine these documents and determine the eligibility of the claims.

2. Validity of remand by Commissioner (Appeals):
The proprietor of the respondent firm supported the order of the Commissioner (Appeals). After careful consideration and reviewing the submissions from both sides, the Tribunal acknowledged the settled law that the Commissioner (Appeals) lacked the power to remand post-amendment of Section 35A. As a result, the impugned order of the Commissioner (Appeals) and the original authority's decision were set aside. The matter was remanded to the original authority for fresh consideration, specifically to examine the documents submitted by the respondents before the Commissioner (Appeals) and to provide a fair opportunity for the respondents to present their case. The appeals were disposed of accordingly, along with the stay petitions.

In conclusion, the Tribunal clarified the limitations on the Commissioner (Appeals)'s power to remand post-amendment of Section 35A and directed a fresh consideration by the original authority in light of the additional documents submitted by the respondents.