2022 (7) TMI 654 - AT - Service Tax

Seeking withdrawal pf appeal of the Department - monetary amount involved in the appeal - power of Commissioner(Appeals) to remand - error apparent on the face of record or not - HELD THAT - Where the subject matter of an appeal already filed before this Tribunal is found to be less than Rs.50.00 Lakhs, the Department is supposed to seek withdrawal of the said appeal. Keeping in view the same and the fact that without following the monetary limits the proper jurisdiction of this Tribunal shall be affected, also keeping in view that the appeal is filed by the Department, the first party of the litigation who is the master of its litigation, the request of withdrawal as made by the appellant-Department is hereby accepted. Power of Commissioner (Appeals) to remand - HELD THAT - On perusal of Section 35A(3) of Central Excise Act 1944, makes it clear that the provision do not extend power of remand to the Commissioner (Appeals). Also from the order of Commissioner (Appeals) in para 14 thereof he has specifically acknowledged the entitlement of the appellant to seek the impugned refund. It is observed that the order of Commissioner (Appeals) has committed apparent non-compliance of statutory provisions (Section 35 A of CEA) the same amounts to be an error apparent on the face of the said order. Hence, while accepting the request of the Department for withdrawing the impugned appeal but keeping in view that the appellant was also to file an appeal seeking the same prayer as the Department has prayed and that the time of that appeal has already expired that liberty is given to the appellant to seek the appropriate remedy before commissioner (Appeals). Commissioner (Appeals) is required to consider their prayer in case the assessee exercises the said appropriate remedy, without applying the bar of limitation. The impugned appeal of the Department is allowed to be withdrawn. Appeal stands dismissed as withdrawn.

Summary

Issues:
1. Monetary limits for appeals before the Tribunal.
2. Challenge to the power of remand by Commissioner (Appeals).
3. Interpretation of Section 35A of the Central Excise Act 1944.

Analysis:
1. The judgment addresses the issue of monetary limits for appeals before the Tribunal as per an Instruction issued by the Ministry of Finance. The Instruction specifies a monetary limit of Rs.50.00 Lakhs and above for appeals to be maintainable before the Tribunal. The Department sought withdrawal of the appeal based on this limit, which was accepted by the Tribunal to maintain proper jurisdiction.

2. The next issue involves the challenge to the power of remand by the Commissioner (Appeals). The appellant Department challenged the remand order despite the Commissioner accepting the respondent-assessee's contention regarding the refund claim. The Tribunal observed that the Commissioner (Appeals) can only confirm, modify, or annul the decision appealed against as per Section 35A of the Central Excise Act 1944. The Commissioner's order was found to be in non-compliance with the statutory provisions, constituting an error apparent on the face of the order.

3. Regarding the interpretation of Section 35A of the Central Excise Act 1944, the Tribunal emphasized that the provision does not grant the power of remand to the Commissioner (Appeals). Despite allowing the withdrawal of the Department's appeal, the Tribunal granted the appellant liberty to seek an appropriate remedy before the Commissioner (Appeals) if the assessee chooses to exercise the remedy, without being barred by limitation. This decision aimed to address the grievances of both parties while upholding statutory compliance.

In conclusion, the Tribunal allowed the Department's appeal to be withdrawn due to monetary limits, but directed the appellant to seek remedy before the Commissioner (Appeals) for the same prayer as the Department had sought. The judgment balanced the interests of both parties and ensured adherence to statutory provisions.