2017 (3) TMI 375 - AT - Service Tax

Power to remand - refund claim - whether the Commissioner (Appeals) has powers to remand to the adjudicating authority for re-determination of the claim of refund? - Held that - the order of remand passed by Commissioner (Appeals) having merged with the Final Order passed by the Tribunal dated 03.12.2013, I am of the view, that the present appeal has to be remanded to the Commissioner (Appeals) for the reason that the order passed by the original authority is non est in law - the appeal is allowed by way of remand to Commissioner (Appeals).

Summary

Issues: Appeal against rejection of refund claim, Commissioner (Appeals) remand powers, sustainability of order passed by adjudicating authority, merging of orders, remand to Commissioner (Appeals).

Analysis:
1. The appeal was filed against the rejection of a refund claim by the Commissioner (Appeals) which was upheld by the adjudicating authority. The Commissioner (Appeals) remanded the matter for re-determination of the refund claim, which was challenged by the appellant before the Tribunal citing the judgment in MIL India Ltd. case. The Tribunal allowed the appeal, stating that the Commissioner (Appeals) did not have the power to remand, and remanded the matter back to the Commissioner (Appeals) for deciding on merits.

2. Subsequently, the original authority adjudicated the refund claim denovo and rejected it on merits. The appellant then appealed to the Commissioner (Appeals) against this rejection, which was again upheld. The appellant argued that the order passed by the adjudicating authority in denovo adjudication was unsustainable as it did not consider the Final Order of the Tribunal dated 03.12.2013, which stated that the matter needed to be remanded to the Commissioner (Appeals) for decision.

3. The appellant contended that the order passed by the adjudicating authority in denovo adjudication dated 11.12.2009 was non est in law as it did not consider the Final Order of the Tribunal. The Tribunal, after hearing the submissions, agreed that the order of remand passed by the Commissioner (Appeals) had merged with the Final Order of the Tribunal, and therefore, the present appeal needed to be remanded to the Commissioner (Appeals) as the original authority's order was unsustainable.

4. In conclusion, the Tribunal allowed the appeal by way of remand to the Commissioner (Appeals) for a fresh decision on the refund claim, considering the merging of orders and the unsustainable nature of the original authority's decision.