TMI Blog2009 (11) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) under section 85(4). No infirmity in impugned order remanding matter. - ST/730/2009-SM(BR) - 1523/2009-SM(BR)(PB), - Dated:- 17-11-2009 - Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri S.K. Bhaskar, DR, for the Appellant. Shri S. Kumar, Advocate, for the Respondent. [Order].- This is an appeal filed by the Revenue against order-in-appeal No. 61/ST/DLH/2009 dated 8-7-09 passed the Commissioner (Appeals) by which the Commissioner (Appeals) set aside the order-in-original dated 20-12-07 passed by the Asstt. Commissioner and remanded the matter for de novo adjudication with certain directions. The Commissioner (Appeals) in the impugned order-in-appeal observed that the order-in-Original passed by the Asstt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , sub-section (5) of Section 85 clearly states that the subject to the provisions of this chapter, in hearing the appeals and making orders under this section, the Commissioner shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making the orders under the Central Excise Act, 1944 that from Section 85(5). it is clear that in Service tax appeals also, the Commissioner (Appeals) has to pass an order modifying, confirming or annulling the decision or order appealed against and he has no option to remand the matter back to the adjudicating authority and that in this regard, he relies upon the Hon'ble Supreme Court's judgment in the case of MIL India Ltd. (supra) wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the appeals against orders passed by the officers subordinate to Commissioner in Service tax matters, are governed by Section 85 of the Finance Act, 1944 whose provisions are different from the provisions of Section 35A and, therefore, by invoking of sub-section (5) of Section 85 providing that subject to the provisions of this chapter, in hearing the appeals and passing order under this Section, the Commissioner (Appeals) shall have the same powers and follow the same procedure, as he exercises and follows in hearing the appeals and passing order under Central Excise Act, 1944, the Department cannot say that the Commissioner (Appeals) while deciding the appeal in Service tax matters has no powers to remand; and that sub-section (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-original passed by the Asstt. Commissioner. The point, raised by the Revenue in its appeal is as to whether while hearing this appeal against the Asst. Commissioner's a order in a Service tax matter, the Commissioner (Appeals) has powers to remand the matter to the adjudicating authority for de novo adjudication. According to the Revenue, the provisions of Section 35A(3) are applicable and 'in view of settled law in this regard, the Commissioner (Appeals) has no powers of remand. 4. Though by virtue of Section 83 of the Finance Act, 1994, certain pro visions of Central Excise Act have been made applicable to Service tax matters, Sec 35, 35A and Section 35B are not among such provisions and with regard the appeals against the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously re funded shall be passed unless the appellant is given notice within the time limit specified in Section 11A to show cause against the proposed order . 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 orders as he thinks fit and such orders may include an order enhancing the Service tax, interest or penalty. Provided that an order enhancing the Service tax, inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (5) of Section 85 providing that the Commissioner (Appeals) in hearing the appeals and making order under this section, shall exercise some powers and follow the same procedure as he exercises and follows while the hearing the appeals and making the order under Central Excise Act, 1944 cannot be interpreted to infer that the Commissioner (Appeals) while hearing Service tax appeals under Section 85 of the Finance Act, 1994 has no powers to remand the matter to the adjudicating authority in appropriate cases. Sub-section (5) of Section 85 is only about the procedural aspects and if cannot be interpreted to restrict the powers of the Commissioner (Appeals) under sub-section (4), as the provisions of sub-section (5) are subject to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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