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2017 (3) TMI 831 - AT - CustomsJurisdiction of Commissioner (Appeals) - power to remand - Held that - the Commissioner (Appeals) had no option but to direct the assessing officer to pass a speaking order as he on his own cannot pass a speaking order at appellate stage - there is no bar on this Tribunal to send the matter to the assessing authority for passing a fresh order. Reliance was placed in the case of Commissioner of Service Tax Versus Versus Associated Hotels Limited 2014 (4) TMI 406 - GUJARAT HIGH COURT , where it was held that Sub-section (4) of section 85 itself contains the width of the power of the Commissioner (Appeals) in hearing the proceedings of appeal u/s 85 - ROM application dismissed - decided against Assessee.
Issues: Rectification of mistake in Tribunal's order regarding remand by Commissioner (Appeals) and power to pass a speaking order.
In this case, the appellant filed an application for Rectification of Mistake in the Tribunal's order dated 24.08.2016, which upheld the remand by the Commissioner (Appeals) to the original assessing officer for passing a speaking order. The appellant argued that the Commissioner (Appeals) had no power to remand the matter and was supposed to pass a final order as per the Board's instruction dated 18.02.2010, as the power of remand by the Commissioner (Appeals) was withdrawn under Section 35A. On the other hand, the revenue contended that the Commissioner (Appeals) rightly remanded the matter for passing a speaking order. The Tribunal analyzed the submissions and referred to various judgments, including CST vs. Associated Hotels Ltd., CCE vs. Medico Labs, CCE vs. Honda Seil Power Products Ltd., and CCE vs. HSA Chadha Exports, to establish that the Commissioner (Appeals) was not barred from remanding the matter for a speaking order. The Tribunal concluded that there was no apparent error in its order and dismissed the application for Rectification of Mistake based on the settled legal position and precedents cited. The judgment was pronounced on 02/02/2017.
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