2013 (10) TMI 857 - AT - Service Tax

Enhancement of service tax - Section 85(4) - Held that - A plain reading of the section shows that the said section does not confer any power of remand to the lower appellate authority. Therefore, the impugned order passed by the lower appellate authority is not sustainable in law - appellate authority is directed to decide the case on merits and determine the tax liabilities, interest and penalties himself - Decided in favour of assessee.

Summary

Issues:
Appeal against Order-in-Appeal remanding the matter back to the original adjudicating authority for deciding the case on merits - Interpretation of Section 85(4) of the Finance Act, 1994 regarding the power of remand by the Commissioner of Central Excise (Appeals).

Analysis:
The appeal before the Appellate Tribunal CESTAT MUMBAI was filed by the Revenue against an Order-in-Appeal passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur, remanding the matter back to the original adjudicating authority for deciding the case on merits. The learned appellate authority had remanded the matter based on the powers conferred under Section 85(4) of the Finance Act, 1994, to ensure principles of natural justice were followed. The Revenue contended that the appellate authority did not have the power to remand and should have decided the appeal on merits, citing a decision of the Tribunal in another case. The Tribunal observed that Section 85(4) of the Finance Act, 1994, does not explicitly confer the power of remand to the lower appellate authority. Therefore, the impugned order of remand by the lower appellate authority was deemed unsustainable in law.

The Tribunal, after careful examination of the matter, decided to allow the appeal filed by the Revenue. The appellate authority was directed to decide the case on merits and determine the tax liabilities, interest, and penalties without remanding the matter back to the original adjudicating authority. The Tribunal emphasized that the lower appellate authority should take up the responsibility of deciding the case comprehensively without resorting to remand. The appeal was disposed of with this direction, and the stay petition was also disposed of accordingly.

This judgment clarifies the interpretation of Section 85(4) of the Finance Act, 1994, in the context of the power of remand by the Commissioner of Central Excise (Appeals). It establishes that the said section does not grant the authority to remand a matter back to the original adjudicating authority, emphasizing the need for the appellate authority to decide the case on merits without resorting to remand. The judgment serves as a precedent for cases involving similar issues of remand and highlights the importance of ensuring a comprehensive and conclusive decision-making process at the appellate level.