2017 (2) TMI 673 - AT - Service Tax

Power of Commissioner (Appeals) to remand the case - whether the Commissioner (Appeals) has no power of remand as the said power was taken away by the amending Section 35A of the Central Excise Act, 1944, w.e.f. 11.05.2001? - Held that - Section 85(4) of the Finance Act, 1994 allows/authorizes Commissioner (Appeals) to pass such order he thinks fit and therefore it cannot be argued that as per Section 85(4), the Commissioner (Appeals) cannot remand the case, if he thinks fit to do so - In Commissioner of Central Excise, Panchkula vs. Goel International Pvt. Ltd. 2015 (12) TMI 329 - CESTAT NEW DELHI , Tribunal has held that language used in Section 85(4) has wider connotation and power to pass such order as he thinks fit includes the power of remand - appeal rejected - decided against Revenue.

Summary

Issues:
1. Appeal against Order-in-Appeal dated 31.03.2010 remanding the case to the Adjudicating Authority for re-adjudication.
2. Interpretation of the power of remand by the Commissioner (Appeals) post-amendment to Section 35A of the Central Excise Act, 1944.
3. Comparison of language in Section 35A(3) of the Central Excise Act, 1944 and Section 85(4) of the Finance Act, 1994 regarding the authority to remand cases.
4. Analysis of relevant case laws supporting the wider connotation of powers of the Commissioner (Appeals) to include the power of remand.

The appellate tribunal heard an appeal filed by the Revenue against an Order-in-Appeal dated 31.03.2010, which remanded the case to the Adjudicating Authority for re-adjudication. The Revenue contended that the Commissioner (Appeals) lacked the power of remand post-amendment to Section 35A of the Central Excise Act, 1944. The tribunal noted that Section 35A(3) post-amendment restricted the Commissioner (Appeals) to confirming, modifying, or annulling the decision, without the explicit power to remand. However, the tribunal highlighted the broader language in Section 85(4) of the Finance Act, 1994, enabling the Commissioner (Appeals) to pass any order deemed fit, including remanding the case. Citing case laws such as Commissioner of Central Excise, Panchkula vs. Goel International Pvt. Ltd., the tribunal emphasized that the power to pass such orders as deemed fit encompassed the authority to remand. Additionally, referring to the judgment in Commissioner of Service Tax vs. Associated Hotels Ltd., the tribunal reiterated that the powers of the Commissioner (Appeals) under Section 85(4) were not constrained by the limitations imposed by Section 35A(3) of the Central Excise Act, 1944. Consequently, the tribunal rejected the Revenue's appeal, upholding the Order-in-Appeal's decision to remand the case for re-adjudication, based on the broader interpretation of the Commissioner (Appeals)' powers under the Finance Act, 1994.