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2012 (5) TMI 469 - AT - Service TaxPower to remand - respondent challenged the order of the ld. Commissioner (Appeals) found that the lower adjudicating authority has not appreciated the facts and circumstances of the case and remitted the case that the lower adjudicating authority to decide as afresh - department filed appeal against the order-in-appeal on the ground that the Commissioner has no power to remit the case to lower adjudicating authority Held that - after 11.5.2001 in Central Excise Act, 1944, power of remand is not given to Commissioner (Appeals), Commissioner is not empowered to remand the matter, he has to decide the matter by himself. Therefore the order of ld. Commissioner (Appeals) remanding the case to the lower authority, is not sustainable, Appeal disposed of by way of remand
Issues:
1. Power of remand by Commissioner (Appeals) under Section 85(4) of the Finance Act, 1994. 2. Comparison of provisions under Section 85(4) and Section 35A(3) of the Central Excise Act, 1944. 3. Applicability of the decision in MIL India Ltd. case regarding the power of remand by Commissioner (Appeals). 4. Jurisdiction of Commissioner (Appeals) to remand the matter in relation to service tax cases. Issue 1: Power of remand by Commissioner (Appeals) under Section 85(4) of the Finance Act, 1994: The case involved an appeal by the Revenue against an order-in-appeal remanding the case to the lower adjudicating authority. The Commissioner (Appeals) had remitted the case for fresh adjudication, citing Section 85(4) of the Finance Act, 1994. The Revenue contended that the Commissioner lacked the power to remand the case to the lower authority. The Commissioner (Appeals) justified the remand under Section 85(4) of the Finance Act, 1994, stating that the power of remand is available to him. The Tribunal analyzed the provisions and observed that the power of remand under Section 35A(3) of the Central Excise Act, 1944, is not aligned with Section 85(4) of the Finance Act, 1994, post the amendment on 11.5.2001. Issue 2: Comparison of provisions under Section 85(4) and Section 35A(3) of the Central Excise Act, 1944: The Revenue argued that the Commissioner (Appeals) erred in comparing the amended provisions of Section 35A(3) of the Central Excise Act, 1944, with Section 85(4) of the Finance Act, 1994. The Tribunal noted that the power of remand was removed from the Central Excise Act, 1944, after the amendment in 2001. The Tribunal referred to the Supreme Court decision in MIL India Ltd. v. CCE and highlighted the differences in the wording of the provisions pre and post the amendment, emphasizing the removal of the expression allowing remand. Issue 3: Applicability of the decision in MIL India Ltd. case regarding the power of remand by Commissioner (Appeals): The Tribunal examined the decision in MIL India Ltd. case, where the Supreme Court held that the power of remand by the Commissioner (Appeals) was eliminated post the amendment in 2001. The Tribunal reviewed the relevant legal provisions and concluded that the power of remand under the unamended Section 35A(3) was explicitly provided but removed after the amendment, thereby affecting the Commissioner's authority to remand cases. Issue 4: Jurisdiction of Commissioner (Appeals) to remand the matter in relation to service tax cases: The Tribunal discussed the jurisdiction of the Commissioner (Appeals) in relation to service tax cases. Referring to precedents, the Tribunal highlighted that the Commissioner lacks the authority to remand matters and must decide on the merits of the case. Despite agreeing with the Commissioner (Appeals) on certain aspects, the Tribunal emphasized that remanding the case to the lower authority in service tax matters is not permissible, and the Commissioner should decide the issue without remand. This detailed analysis of the judgment highlights the key issues surrounding the power of remand by the Commissioner (Appeals) under specific legal provisions and the implications of relevant precedents on such decisions in the context of service tax cases.
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