2016 (4) TMI 546 - AT - Service Tax

Whether the Commissioner (A) has power to remand the matter back to Original Authority for de-novo adjudication in terms of Section 35A(3) of Central Excise Act, 1944 - Held that - Section 35 A(3) ibid prior to its amendment (upto 10.05.2001) empowered the Commissioner (A) for referring the case back to the Adjudicating Authority. However, the said statutory provision was amended w.e.f. 11.05.2011, specifically curtailing the power of the Appellate Commissioner for sending back the case to the adjudicating authority. Therefore, in view of the settled position of law, the impugned order remanding the matter back to the Original Authority is not in conformity with the statutory provisions and hence set aside and the matter is remanded to the Commissioner (A) for deciding the issue by himself. - Decided in favour of appllant

Summary

Issues:
1. Interpretation of Section 35A(3) of the Central Excise Act, 1944 in relation to the power of the Commissioner (Appeals) to remand a case back to the Adjudicating Authority.

Analysis:
The appellant challenged the order passed by the Commissioner (Appeals) and appealed to the Tribunal, contending that the Commissioner (Appeals) exceeded his power by remanding the case back to the Adjudicating Authority. The key issue before the Tribunal was whether the Commissioner (Appeals) had the authority to remand a case for de-novo adjudication under Section 35A(3) of the Central Excise Act, 1944.

Upon hearing arguments from both sides and examining the records, the Tribunal noted that the impugned order remanded the matter to the jurisdictional Service Tax Authorities for further consideration of the refund claim. The Tribunal identified the central question as whether the Commissioner (Appeals) possessed the power to remand the case back to the Original Authority for fresh adjudication as per Section 35A(3) of the Act.

The Tribunal referred to the amendment in Section 35A(3) of the Act, which restricted the Appellate Commissioner's authority to send cases back to the adjudicating authority. The amendment aimed to ensure that the Commissioner (Appeals) acts as an Adjudicating Officer and independently adjudicates on aspects not considered by the Original Authority. Citing a precedent case, the Tribunal highlighted that the Commissioner (Appeals) should treat their order as an assessment order and refrain from remanding cases to the original authority.

In light of the legal position and the precedent set by the Supreme Court, the Tribunal concluded that the impugned order remanding the matter to the Original Authority was not in line with statutory provisions. Consequently, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for personal adjudication, granting the appellant a fair opportunity for a hearing. The appeal was allowed through remand to the Commissioner (Appeals) for further consideration and decision-making.

This detailed analysis of the judgment highlights the interpretation of Section 35A(3) of the Central Excise Act, 1944 concerning the authority of the Commissioner (Appeals) to remand cases and the implications of relevant legal amendments and judicial precedents on such decisions.