Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2021 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (9) TMI 386 - AT - Service TaxPower of commissioner (appeals) to remand back the case - Non payment of service tax - tour operator service - matter was remanded to the original Adjudicating Authority directing the detailed examination in terms of Circular No. 117/11/2009-ST dated 30.10.2009 and Place of Provisions Rules, 2012 and also in the light of the concept of ‘negative list’ of services - power of Commissioner (Appeals) to remand the matter - Section 35A(3) of Central Excise Act, 1944 amended with effect from 11.05.2001 - HELD THAT:- As apparent from the impugned order under challenge, Commissioner (Appeals) has not reflected the opinion as to whether he has accepted the reasoning of the Original Adjudicating Authority or is rejecting the same. The order is silent about any proposed modification. It simply has directed the Original Adjudicating Authority to reconsider directing the detailed examination in terms of Circular No. 117/11/2009-ST dated 30.10.2009 and Place of Provisions Rules, 2012 and also in the light of the concept of ‘negative list’ of services as prevalent from 01.07.2012 onwards. In Section 35A(3) as exists on date, sending back the matter to Original Adjudicating Authority with such directions is no more in competence of Commissioner (Appeals) since Section 35A (3) stands amended with effect from 11.5.2001. The order under challenge is not either of the one as is mentioned in sub clause (3) of Section 35A. It is precisely an order of remand which power stand withdrawn from Commissioner (Appeals). This order from no sense of interpretation can be held to have been passed either under the power of annulling or the power of confirming or the power of modifying - In the present case, the order of Commissioner (Appeals) is not in terms of directions which may amount to modification neither of annulling nor of confirming. It is clear cut order of remand directing Original Authority to reconsider the facts and pass the fresh order. It is clear that the order under challenge is beyond the competent jurisdiction of Commissioner (Appeals) - it is deemed to be a fit case to set aside the same - Commissioner (Appeals) is directed to adjudicate the same on merits in any of the three forms as are mentioned in amended section 35A(3) of Central Excise Act - appeal allowed by way of remand.
|