TMI Blog2010 (9) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 16-9-2010 - S/Shri P.G. Chacko, P. Karthikeyan, JJ. REPRESENTED BY : None, for the Appellant. Shri D.P. Nagendra Kumar, JCDR, for the Respondent. [Order per : P.G. Chacko, Member (J) (Oral)]. These appeals are by M/s. Cochin International Airport Ltd. (CIAL for short). There is no representation for the appellant today despite notice, nor any request of theirs for adjournment. After examining the records, we have found enough reasons to dispose of these cases finally at this stage. Accordingly, after hearing the learned JCDR, we proceed to deal with the appeals. 2. In adjudication of a show-cause notice, the original authority had demanded Service Tax of Rs. 41,906/- from CIAL on the demurrage cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain approached the Commissioner (Appeals). This time, the appellate authority noted that the appellant had not produced any document in support of their claim for exemption from payment of Service Tax on demurrage charges collected by them in respect of agricultural produce. It was noted that such evidence had not been produced before the original authority nor before the appellate authority. The learned Commissioner (Appeals) also noted a case law cited by the assessee vide Karnataka State Beverages Corporation v. Commissioner of Service Tax, Bangalore [2006 (4) S.T.R.. 469 (Tri.-Bangalore)], but did not properly consider the same. In the result, the case came to be remanded once again to the original authority vide Order-in-Appeal dated1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the case to the lower authority to requantify the amount of Service Tax after considering any evidence adduced by the party in support of the claim for exemption from payment of Service Tax on demurrage charges levied on agricultural produce. The remand order passed by the learned Commissioner (Appeals) is under challenge before us in appeal No. S.T./562/2008. The Commissioner (Appeals) has no power of remand as held by the Hon ble Supreme Court in MIL India Ltd. v. Commissioner [2007 (210) E.L.T. 188 (S.C.)]. For better clarity, we reproduce below the relevant observations of theApex Court: In fact, the power of remand by the Commissioner (Appeals) has been taken away by amending Section 35A with effect from11-5-2001under the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Commissioner (Appeals). As rightly held by the Hon ble Supreme Court in the case of MIL India Ltd. (supra), the Commissioner (Appeals) can exercise the power of adjudicating authority also when the Commissioner (Appeals) has no power of remand. 5. In this scenario, we are constrained to allow appeal No. S.T./562/2008 by way of remand to the lower appellate authority, the challenge in appeal No. S.T./06/2007 having become infructuous. We request the Commissioner (Appeals) to pass fresh order on all the issues including the question whether demurrage charges collected in respect of whatever goods were exigible to levy of service tax under the head, Storage and Warehousing service during the period of dispute on merits in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
