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2015 (10) TMI 2537 - AT - Service TaxPower of Commissioner (Appeals) to remand the matter - Section 35A(3) of Central Excise Act, 1944 - Revenue contended that Commissioner (Appeals) has no power of remand as the said power was taken away by amending Section 35A of the Central Excise Act, 1944 w.e.f. 11-5-2001 - Held that:- it has been rightly contended by the Revenue that the Commissioner (Appeals) had the power only to confirm, modify or annul the decision or order appealed against and did not have the power to remand the case to the primary adjudicating authority as the words “or may refer the case back to the adjudicating authority with such direction he may thinks fit for fresh decision or as the case may be after taking additional evidence if necessary” which existed in Section 35A(3) prior to 11-5-2001 were deleted w.e.f. 11-5-2001. But as per Section 85(4) of the Finance Act, 1994 the “Commissioner of Central Excise (Appeals) shall hear and determine the appeal and subject to the provisions of this chapter pass such order as he thinks fit and such orders may include an order enhancing the service tax interest or penalty”. Thus it is seen that the language of Section 85(4) is not pari materia the language of Section 35A(3) of the Central Excise Act, 1944. Indeed, Section 85(4) of the Finance Act, 1994 allows/authorises Commissioner (Appeals) to pass such order he thinks fit and therefore it cannot be argued that as per this Section [85(4)] the Commissioner (Appeals) cannot remand the case if he thinks fit to do so. It is seen that in the case of Commissioner of Central Excise, Panchkula v. Goel International Pvt. Ltd. [2015 (12) TMI 329 - CESTAT NEW DELHI], CESTAT has held that language used in Section 85(4) has wider connotation and power to pass such order as he thinks fit includes the power of remand. - Decided against the Revenue
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