2017 (4) TMI 996 - AT - Service Tax

Powers of remand of the Commissioner (Appeals) - Section 35A - Held that - after verifying the contention of the respondents with regard to deposit of Serve tax & Education Cess vide GAR-7/TR-6 Challans dated 07/01/2008, 19/02/2008, 07/03/2008, 26/03/2008, it was felt necessary to give due opportunity to the respondents to substantiate their claim. It is just and proper to uphold the order of remand by the Commissioner (Appeals) - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Commissioner (Appeals) remanded the case for re-adjudication.
2. Power of remand of the Commissioner (Appeals) post amendment of Section 35A.
3. Submission of GAR-7/TR-6 Challans after a significant delay.
4. Verification of the genuineness of the contention regarding the deposit of Service tax & Education Cess.
5. Upholding the order of remand by the Commissioner (Appeals).

1. Commissioner (Appeals) Remand Decision:
The Revenue filed an appeal against Order-in-Appeal No.218-ST/GZB/2010, where the Commissioner (Appeals) set aside the Order-in-Original due to it being an ex-parte order. The Commissioner (Appeals) detailed the facts, referred to case laws, and remanded the case for re-adjudication. The Revenue contended that the Commissioner (Appeals) wrongly allowed the appeals through remand, citing the amendment to Section 35A post 11/05/2001, which withdrew the power of the Commissioner (Appeals) to remand matters. The Revenue relied on a Board Clarification referencing a Supreme Court ruling to support their argument.

2. Power of Remand Post Amendment:
The Revenue argued that the power of remand by the Commissioner (Appeals) was revoked post the amendment to Section 35A. They referenced a Board Clarification and a Supreme Court ruling to support their stance. However, the Commissioner (Appeals) observed that the respondent-assessee filed the appeal based on specific grounds related to non-submission of certain Challans, necessitating a re-examination of the case.

3. Submission of Challans After Delay:
The appellants submitted GAR-7/TR-6 Challans after a significant delay, with some dated as far back as 2008. The Commissioner (Appeals) noted that these Challans were not before the Original Authority during the initial decision-making process. The delay in submission raised concerns about the genuineness of the appellants' claims regarding the deposit of Service tax & Education Cess.

4. Verification of Genuineness of Claims:
The Commissioner (Appeals) emphasized the need to verify the authenticity of the appellants' claims regarding the deposit of Service tax & Education Cess based on the delayed submission of Challans. The lack of verification by the department regarding these deposits prompted the decision to remand the case for further examination by the Original Authority.

5. Upholding the Remand Order:
After considering the arguments and reviewing the records, the Commissioner (Appeals found it necessary to provide the respondents with an opportunity to substantiate their claims regarding the Challans. Consequently, the order of remand by the Commissioner (Appeals) was upheld, dismissing the appeal filed by the Revenue and directing the Adjudicating Authority to re-hear the appellant with adequate hearing opportunities.