2011 (1) TMI 925 - AT - Service Tax

Commissioner s (Appeals) power to remand - Revenue relied upon the decision of the Hon ble Punjab & Haryana High Court in the case B.C. Kataria (2007 - TMI - 1757 - High Court ,Punjab and Haryana ) held that after amendment to Section 35A of the Act, the Commissioner (Appeals) has no power to remand - amendment to Section 35A of Central Excise Act whereby the power to remand by the Commissioner (Appeals) has been withdrawn, order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal afresh after affording an opportunity of hearing to the Respondents. The appeal is disposed off by way of remand.

Summary

Issues:
1. Power of Commissioner (Appeals) to remand the matter after the amendment to Section 35A(3) of the Central Excise Act.

Analysis:
The appeal was filed by the Revenue against the impugned order where the Commissioner (Appeals) remanded the matter to the adjudicating authority regarding the disallowance of Cenvat credit of Rs. 58,861. The Revenue contended that post the amendment to Section 35A(3) of the Act, the Commissioner (Appeals) no longer has the power to remand a case. The Revenue relied on a decision by the Hon'ble Punjab & Haryana High Court which stated that the Commissioner (Appeals) lacks the authority to remand after the amendment. Additionally, the Revenue referred to a Board instruction issued in 2010 clarifying that the Commissioner (Appeals) cannot remand a case, and can only exercise the power of the adjudicating authority in matters of assessment. The respondent did not object to the Revenue's contention.

The Tribunal noted the amendment to Section 35A of the Central Excise Act which withdrew the power of the Commissioner (Appeals) to remand cases. Citing decisions by the Hon'ble Supreme Court and the Hon'ble High Court in line with the Revenue's arguments, the Tribunal set aside the impugned order. The matter was remanded back to the Commissioner (Appeals) for a fresh decision after providing an opportunity of hearing to the Respondents. The appeal was disposed of through remand, emphasizing the limitations on the Commissioner (Appeals) to remand cases post the statutory amendment.

This judgment primarily focused on the issue of the Commissioner (Appeals) remanding a case after the amendment to Section 35A(3) of the Central Excise Act. The Tribunal clarified that the Commissioner (Appeals) no longer holds the power to remand cases and can only exercise the authority of the adjudicating authority in matters of assessment. The decision was based on legal precedents and statutory provisions, emphasizing the limitations on the Commissioner (Appeals) in remanding cases for fresh decisions.