2010 (10) TMI 527 - AT - Service Tax

Power to remand the matter - Refund claim relating to the services of CHA and sales commission under the notification No. 41/2007-S.T., dated 6-10-2007 - The rejection of refund claim in relation to CHA as well as commission was not correct and at the same time it has been held that the claim has to be sanctioned after necessary verification - The Commissioner (Appeals) has no power to remand the matter and he has to decide the matter by himself in case of any infirmity in the order passed by the adjudicating authority - Necessary for the Commissioner (Appeals) to analysise the materials on record and to arrive at appropriate finding on the claim of the respondent - Hence, impugned order not sustainable and is liable to be set aside and the matter remanded to the Commissioner (Appeals) to do the needful.

Summary

Issues:
Appeal against order passed by Commissioner (Appeals) - Jurisdiction to remand the matter.

Analysis:
The appeal in question arose from an order passed by the Commissioner (Appeals), Mumbai, which set aside the order passed by the original authority. The main issue raised was whether the Commissioner (Appeals) had the jurisdiction to remand the matter or if he was required to pass the appropriate order himself. Reference was made to a Supreme Court decision in the case of Mil India Ltd. v. Commissioner of Central Excise, Noida - 2007 (210) E.L.T. 188 (S.C.) regarding this matter.

Upon hearing both parties and examining the records, the Commissioner (Appeals) found that the rejection of the refund claim related to services of CHA and sales commission was incorrect. The Commissioner (Appeals) noted that the claims were in order as per relevant notifications and needed to be sanctioned after verification of payment of service tax. However, the Commissioner (Appeals) did not pass the appropriate order himself but left the further proceedings to be undertaken by the adjudicating authority.

It was argued that the Commissioner (Appeals) did not have the power to remand the matter and was required to decide it himself in case of any infirmity in the original authority's order. In this case, since the Commissioner (Appeals) found the original authority's findings on the two issues to be unsustainable, it was necessary for him to analyze the materials on record and arrive at appropriate findings on the respondent's claims instead of leaving the matter for verification by the adjudicating authority.

Therefore, the impugned order was deemed not sustainable on this ground, and it was set aside. The matter was remanded to the Commissioner (Appeals) to take necessary action. It was clarified that no opinion was expressed on the findings related to the rejection of the claims concerning CHA services and sales commission. The cross-objection was disposed of accordingly, and the appeal was disposed of in the above terms.