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TMI Blog2012 (8) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... als) is certainly entitled to 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... educing 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-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in Section 11A to show cause against the proposed order . Similar view has been taken by the Hon ble Supreme Court in the case of Mil India Ltd. Vs. Commr. of Central Excise, Noida reported in 2007 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f rejection of refund claim of service tax of Rs.10,90,003/- they contended that owing to clerical mistake they submitted refund claim of Rs.10,90,003/- in stead of 1,25,702/- and requested to sanction the said revised claim. In respect of sanction of refund claim of service tax of Rs.20250/- pertaining to Roy & Chatterjee Pvt. Ltd., DEBEX contented that the service rendered by Roy & Chatterjee Pvt. Ltd. were all Port Services and that re-classification of the impugned services as rendered as Cargo Handling Services would amount to re-assessment of services rendered by the service provider. They cited and referred to case law of M/s Anant Commodities Pvt. Ltd. Vs. CCE-2010 (18) STR 214 (T) wherein the Hon ble Tribunal has held that withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat department disputed actual exportation of goods. In view of above, I find no other alternative but to remand the case to the lower authority to issue a fresh order after going through the aforesaid case laws vis-`-vis the said Notification. I, therefore, set aside the impugned O-I-O dated 4.6.2009 and remand the matter to the lower authority to issue a fresh order after considering the discussion made case laws cited hereinabove and after providing an opportunity of personal hearing to the appellant. Hon ble Supreme Court in the case of MIL India Ltd. (supra) held that the power of remand by the Ld. Commissioner (Appeals) has been taken away by amended Section 35A w.e.f. 11-5-2001 under the Finance Act, 1994. For the better apprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealing with the appeals under Central Excise Act, 1944 lacks jurisdiction to remand the matter to the Adjudicating Authority. The law provides that in case the Commissioner (Appeals) finds any infirmity in the order passed by the Adjudicating Authority or the order is found to be unsustainable, the Commissioner (Appeals) is certainly entitled to set aside such order 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 . Thus in case of service tax also the Commissioner (Appeals) is not empowered to remand the matter, he has to de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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