2013 (5) TMI 644 - AT - Service Tax

Power of commissioner to remand - held that - in the case of Commr. of Customs, Amritsar v. Enkay (India) Rubber Co. Pvt. Ltd. 2007 (3) TMI 276 - HIGH COURT OF PUNJAB & HARYANA also held that once the power to remand has been expressly taken away buy the finance Act, 2001, the Commissioner (Appeals) is divested of power to remand the case back to the adjudicating authority. - Commissioner (Appeals) to decide the appeal in merit.

Summary

Issues: Jurisdiction of Commissioner (Appeals) to remand a case under Section 35A(3) of Central Excise Act.

In this judgment by the Appellate Tribunal CESTAT KOLKATA, the case involved a show cause notice imposing Service Tax on a stock broking services provider. The Commissioner (Appeals) remanded the case for fresh adjudication, directing a reexamination of the evidence on record. The Revenue contended that under the amended provision of Section 35A(3) of the Central Excise Act, the Commissioner (Appeals) lacked the authority to remand the case.

The Tribunal noted that the power to remand by the Commissioner (Appeals) under Section 35A(3) had been withdrawn since May 11, 2001. Citing a decision by the Hon'ble Punjab & Haryana High Court in a related case, it was established that once the power to remand had been explicitly removed by the Finance Act, 2001, the Commissioner (Appeals) was stripped of the ability to remand the case back to the adjudicating authority. Consequently, the Tribunal agreed with the Revenue's argument that the Commissioner (Appeals) indeed lacked the power to remand.

Therefore, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for a decision on the appeal's merits, with both sides given an opportunity to present their case. The appeal was allowed solely for the purpose of remand, emphasizing the limitation on the Commissioner (Appeals)'s authority to remand cases under the amended provision of Section 35A(3) of the Central Excise Act.