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2011 (4) TMI 624 - CESTAT, MUMBAIDiscretion to refuse to admit service tax appeal. - Refund - It has been argued that, by virtue of the above provision, the Appellate Tribunal (Single Member) can exercise the same power and follow the same procedure as it exercises under the second proviso to sub-section (1) of Section 35B of the Central Excise Act. This argument of the learned JDR is not sustainable for two reasons. Firstly, Section 35B of the Central Excise Act is not one of the provisions specified in Section 83 of the Finance Act for applicability to service tax appeals. Secondly, sub-section (7) of Section 86 of the Finance Act, 1994 purports to authorize the Appellate Tribunal to exercise the same powers and follow the same procedures as it exercises and follows in hearing the appeals and making orders under Central Excise Act, 1944 in the matter of hearing appeals and making orders in Service Tax cases. The phrase hearing the appeals and making orders appearing in sub-section (7) of Section 86 ibid is significant for its import. It would mean that the provision is applicable to the context of hearing a service tax appeal on merits and passing orders thereon. Obviously, sub-section (7) of Section 86 ibid authorizes the Tribunal to adopt the provisions of Section 35C of the Central Excise Act, for the purpose of hearing and making orders on service tax appeals. I find that the same view has been taken by the learned Single Member in the case of Asiatic Enterprises (2006 (9) TMI 260 - CESTAT, KOLKATA).
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