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TMI Blog2012 (8) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside order passed by the Adjudicating Authority and thereupon pass an appropriate order on merits by himself but not to remand the matter. Being so, Commissioner (Appeals) dealing with the appeals in relation to the service tax also is not empowered to remand the matter but he has to decide the matter by himself - remand the matter to the lower adjudicating authority making such further inquiry as may be necessary. - SERVICE TAX APPEAL NO.ST/420/11 - - - Dated:- 12-7-2012 - SHRI S.K.GAULE, DR. D.M.MISRA, JJ. SHRI S.CHAKRABORTY, AR (ASSTT. COMMR.) FOR THE REVENUE; Per Shri S.K.Gaule Heard the learned AR for the Revenue. None present for the Respondent. 2. The Applicant/Appellant Commissioner has filed this Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against: Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Commissioner (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CMA CGM East South India Pvt. Ltd., the services are other than the services specified in the notification and the appellants did not submit invoices of input services for period ending Dec. 07; Regarding services received from M/s. Container Corporation of India Ltd. invoices of input service for the period ending Dec, 07 were not submitted. Further from the study of the invoices of previous period it revealed that the service provider is not registered under Transportation of Goods in Container by Rail service. So, the Service Tax, if at all paid for railway freight in any other account head. by service provider. has not gone into the account head of Sec. 65(l05)(zzp) of the Act; Regarding services received from M/s. SGS India Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing decisions: - i) CCE vs. Dishman Pharma. Chemicals Ltd [2011(21)STR-246(T)]; ii) CBAY Systems (India) Pvt. Ltd vs. CCE [2O11(21)STR 688(T)]. They further relied on the decision in the case of SICA vs. CST [2008-I7-STT 114(T)], which held that any services which are rendered within the Port area would be classifiable under the service head of Port Services. In this context they also referred to Board s Circular No. 334/I/2010-TRU. In support of their argument the appellants have submitted a copy of one Order-in-Original No.(R)/74/ST/Div-I/2009 dated 04.11.09 granting refund to them against export of goods using services received from the said same service providers for the quarter ending March, 08, i.e.next quarter to the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary . However, the situation has changed after the amendment carried out by Finance Act, 2001 came into effect from 11-5-2001. The changed legal position of sub-section (3) of Section 35A is as under :- Sub-section (3) of Section 35A after amendment The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against . From the above, it follows that the power of remand was explicitly provided under unamended sub-section (3) of Section 35A pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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