2023 (3) TMI 1127 - AT - Service Tax

Jurisdiction - power of Commissioner (Appeals) to remand the matter to Adjudicating Authority - Section 35 A of Central Excise Act, 1944 / Section 128 A (3) of the Customs Act, 1962 - HELD THAT - As per the judgment of the Hon ble Jurisdiction High Court of Gujarat in the case of COMMISSIONER OF SERVICE TAX VERSUS VERSUS ASSOCIATED HOTELS LIMITED 2014 (4) TMI 406 - GUJARAT HIGH COURT in which the support was taken from the Hon ble Supreme Court Judgment in the case of MIL INDIA LTD. VERSUS COMMISSIONER OF C. EX., NOIDA 2007 (3) TMI 8 - SUPREME COURT . On this settled position this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE ST, AHMEDABAD VERSUS ADANI POWER LIMITED 2020 (3) TMI 810 - CESTAT AHMEDABAD dealing with one of the issue of remanding power of the Commissioner (Appeals) held that the learned Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority. Thus, the Commissioner (Appeals) has indeed power to remand the matter. Accordingly, there is no error in the impugned order to the extent the matter was remanded to the Adjudicating Authority. Appeal of Revenue dismissed.

Summary

Issues involved:
The issue involved in the Revenue's Appeal is whether the Commissioner (Appeals) has the power to remand the matter to the Adjudicating Authority.

Judgment Details:

Issue 1 - Commissioner (Appeals) power to remand the matter:
The Revenue contended that the Commissioner (Appeals) lacks the authority to remand the matter to the Adjudicating Authority, citing Section 35A of the Central Excise Act, 1944 / Section 128A(3) of the Customs Act, 1962 post the amendment on 11.05.2001. However, the Respondent argued that as per the decision of the Jurisdiction High Court in the case of Associated Hotels Limited and a subsequent Tribunal order in the case of CCE vs. Adani Power Limited, the Commissioner (Appeals) does possess the power to remand the matter. The Tribunal, after considering the submissions and legal precedents, upheld that the Commissioner (Appeals) indeed has the authority to remand the matter to the Adjudicating Authority based on settled legal positions.

Conclusion:
The Tribunal concluded that the Commissioner (Appeals) does have the power to remand the matter to the Adjudicating Authority, as supported by the judgments of the Hon'ble Gujarat High Court and the Hon'ble Supreme Court. Therefore, the Revenue's appeal was deemed not maintainable, and the impugned orders were upheld. The decision was pronounced in the open court on 24.03.2023.