TMI Blog2010 (10) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri K.K. Jaiswal, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (for the Bench)]. Heard the learned advocate for the appellants and DR for the respondent. The Miscellaneous application is for recall of the order dated7-7-2009passed by the Tribunal though simultaneously the applicant has also prayed for recall of the order dated5-1-2010by which his earlier Restoration application was dismissed for default. 2. It would be appropriate to record certain relevant facts before we deal with the contentions sought to be raised in the matter. The appellants, is a partnership firm. On the ground that the appellants undertake the business of rent-a-cab scheme operator from the business premises situated at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/- while confirming the appropriation of Rs. 50,765.50p already deposited by the appellants and also imposed penalty of equal amount and ordered for recovery of interest and also imposed penalty of Rs. One lakh on each of the partners. In short, the earlier order regarding the quantification of duty liability and penalty was reiterated by the Jt. Commissioner. 4. Meanwhile, the appellants herein being aggrieved by the order dated20-3-2007passed by the Commissioner (Appeals) had preferred Appeal No. 323/2007. The same came up for hearing on various dates and ultimately on7-7-2009, the Tribunal was informed that pursuant to the remand of the matter by the Commissioner (Appeals), the original authority had already disposed of the matter afr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 7. The DR submitted that taking into consideration the facts and circumstances of the case, it cannot be held that the authorities below have acted illegally or contrary to the provisions of law and therefore there is no case for entertaining the application for restoration the proceedings. 8. It cannot be disputed that by order dated20-3-2007, the Commissioner (Appeals) has finally decided the service tax liability of the appellants. By dismissal of the Appeal No. 323/2007, in fact, the said order has attained finality. At the same time, as rightly pointed out by the learned Advocate for the appellants, there would be no opportunity to the appellants to challenge the service tax liability while considering the matter even at the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought not to have proceeded with the matter. 10. Apart from the points which are sought to be raised, there is another point which requires consideration while deciding the matter. It is settled law that Commissioner (Appeals) has no power to remand a matter. In case a Commissioner (Appeals) finds any infirmity in the order under challenge before him, the Commissioner (Appeals) is certainly empowered to decide the matter afresh by himself or herself as the case may be, but is not authorised to remand the matter. Since the Commissioner (Appeals) do not have statutory power to remand the matter, the order of Commissioner (Appeals) directing the remand of the matter was therefore, without jurisdiction. It is settled law that a statutory auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9passed by the original authority. 15. Though the impugned orders are sought to be challenged on various grounds it is not necessary to deal with those grounds and suffice to refer to only one ground relating to each of the impugned orders. 16. The first ground in relation to order dated20-3-2007passed by the Commissioner (Appeals) is about the absence of jurisdiction to the lower appellate authority to remand the matter. Though the ground has not been specifically raised in the appeal, we have allowed the learned advocate for the appellants to raise the same as it goes to the root of the matter, since it is about the jurisdiction of the authority to entertain the matter. 17. The Commissioner by the said order dated20-3-07had remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 29-1-2010 passed by the Commissioner (Appeals) is also liable to be set aside holding the same to be bad in law. 19. In the result therefore, both the appeals succeed and are hereby allowed and the impugned order dated 20-3-2007 passed by the Commissioner (Appeals), NOIDA is liable to be set aside to the extent it remanded the matter to the original authority, and the matter need to be remanded to the Commissioner (Appeals) to decide the same in accordance with the provisions of law after hearing the parties. The appeal No. 221/2010 is also allowed by setting aside the order dated29-1-2010passed by the Commissioner (Appeals), NOIDA along with order dated27-2-2009passed by the original authority. 20. The learned Advocate for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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