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2010 (12) TMI 405 - AT - Service TaxDemands of service tax - Assessee pleaded that the allegation against them that they had not paid the service tax by due date or had short paid the service tax is incorrect, as there was no short payment and the service tax had been paid by the due date, that in spite of service tax having been paid by them by the due date, show cause notices were issued alleging short payment/non-payment and service tax demand confirmed against them - the Commissioner (Appeals) on one hand has set aside the service tax demands accepting the respondent's plea that service tax which have been demanded had already been paid by them by the due date, but on the other hand, he has directed the adjudicating authority to verify the original duty paying documents while before setting aside the service tax demands the necessary verification about genuineness of the tax paying documents should have been done. The orders of setting aside the documents without verification and directing original adjudicating authority to do the verification are not correct and have to be set aside. Cenvat credit - section 85 of the Finance Act, 1994 read with section 35A of the Central Excise Act, 1944 - The Commissioner (Appeals)has directed the original adjudicating authority to verify the relevant documents and come to a reasoned conclusion regarding the admissibility or otherwise on the cenvat credit., the Hon'ble Supreme Court in the case of MIL India Ltd. (supra) and Hon'ble Punjab & Haryana in the case of CCE v. B.C. Kataria (2007 -TMI - 3281 - HIGH COURT OF PUNJAB & HARYANA) has held that after amendment of section 35A of the Central Excise Act, 1994 with effect from 11-5-2001, the Commissioner (Appeals) has no powers to remand any matter - Therefore, the Commissioner (Appeals) does not have the powers to remand the matter and for deciding an appeal filed before him, if necessary, he has to call for the records and give his findings.
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