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TMI Blog2016 (12) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Beevi, C. S. ] 1. The above appeals are filed by the department challenging the order passed by the Commissioner(Appeals) which remanded the matter to the original adjudicating authority. 2. The Ld AR Shri Nagaraj Naik submitted that as per amended provisions of Section 35(A)(3) of Central Excise, Act, 1944 w.e.f. 11-05-2001, the powers of Commissioner(Appeals) to remand the matter has been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not curtail the power of the Commissioner (Appeals) to remand the matter to the original authority. He drew support from the judgment laid by the Hon'ble High Court of Gujarat in CST Vs Associated Hotels Ltd. 2015(37) STR-723(Guj) . 4. I have heard both sides. 5. The short issue to be considered is whether the Commissioner (Appeals), while decising a service tax appeal has powers to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Apex Court laid in MIL Ltd. case (supra). After analyzing sub-section 4 of Section 85 of Finance Act, the Hon'ble High Court observed that the Commissioner (Appeals) can pass such order as it thinks fit including the orders for enhancing tax , interest, or penalty and that such powers would include the power to remand also. The relevant portion of the judgment is reproduced as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to hold the field even after the decision of the Supreme Court in the case of MIL India Ltd. (supra). The person aggrieved, be it Revenue or the assessee, would of course, contend that when there was conscious decision of the Legislature to amend certain power of remand which was previously specifically provided in the statute, the same would amount to taking away powers which hitherto existed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 85 itself contains the width of the power of the Commissioner (Appeals) in hearing the proceedings of appeal under Section 85. The scope of such powers flowing from sub-section 85(4) therefore cannot be curtailed by any reference to sub-section (5) of Section 85 of the Finance Act, 1994." 7. From the above, it is clear that the sub-section 4 of Section 85 of Finance Act, does not specifically c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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