2011 (4) TMI 1060 - AT - Service Tax

Power to remand - contention of the Applicant, Application is that as per the provisions of Section 85 of the Finance Act in respect of the appeals relating to Service tax matters, the Commissioner has power to remand Held that - Section 85(5) of the Finance Act provides that Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure, as he exercises and follows in hearing the appeals and makes orders under Central Excise Act, 1944, no merit in the contentions of applicant, Application is disposed of

Summary

Issues:
1. Appeal for recalling Final Order dated 18-1-2011.
2. Power of the Commissioner to remand the matter.
3. Interpretation of Section 85 of the Finance Act in relation to appeals on Service tax matters.

Analysis:
1. The Applicant, M/s. Bahubali International Ltd., filed an Application for recalling the Final Order dated 18-1-2011. The Revenue had filed an Appeal against the Order dated 31-3-2010 passed by the Commissioner (Appeals), which remanded the matter to the Adjudicating Authority. The Final Order dated 18-1-2011 set aside the impugned Order and remanded the matter to the Adjudicating Authority for a decision on merits after providing a hearing to the Assessee.

2. The only contention raised by M/s. Bahubali International Ltd. in their Application was regarding the power of the Commissioner to remand the matter. They argued that as per Section 85 of the Finance Act concerning appeals on Service tax matters, the Commissioner has the authority to remand. However, the Tribunal noted that Section 85(5) of the Finance Act explicitly states that the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as under the Central Excise Act, 1944. Therefore, the Tribunal found no merit in the Applicant's contentions, emphasizing that they are free to raise all factual and legal issues before the Commissioner (Appeals).

3. The Tribunal's interpretation of Section 85 of the Finance Act clarified that the Commissioner of Central Excise (Appeals) is mandated to exercise powers and procedures akin to those under the Central Excise Act, 1944, in hearing appeals and issuing orders. Consequently, the Tribunal disposed of the Application, affirming that M/s. Bahubali International Ltd. can present all factual and legal matters before the Commissioner (Appeals) for due consideration. The judgment was pronounced and dictated in open court, concluding the matter.