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2022 (3) TMI 556 - AT - Service TaxJurisdiction - power of Commissioner (Appeals) under Section 35A(3) of the Central Excise Act, 1944 - Construction, erection, commissioning or installation of original work pertaining to airport, port or railway etc. - HELD THAT:- It is to be noted here that the power of the Central Excise & Service Tax Appellate Tribunal is limited to the examination of legality of the order passed by the Commissioner (Appeals) and not like the Commissioner (Appeals)’s power under Section 35A(3) of the Central Excise Act, 1944 that authorises him to make such further enquiry as may be necessary and pass such order as he finds just and proper. Since, in the instant case exemption notification would only cover part of the disputed period, its application to the entire proceeding can only be determined by the adjudicating authority. In the absence of any finding on its application for wants of its invocation at the time of adjudication proceedings, it would be just and proper to remand the matter back to the original adjudicating authority for fresh adjudication concerning application of Notification No. 25/2012-ST and its amended Notification No. 9/2016-ST, so as to arrive at a conclusion on the sustainability of such duty demand including invocation of the extended period. The appeal is allowed by way of remand for readjudication by the original adjudicating authority and accordingly the order passed by the Commissioner of GST & Central Excise Tax (Appeals) Nagpur is set aside.
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