TMI Blog2012 (5) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide the matter by himself. Therefore the order of ld. Commissioner (Appeals) remanding the case to the lower authority, is not sustainable, Appeal disposed of by way of remand - ST/192/2010 - A/231/11/SMB/C-IV - Dated:- 14-6-2011 - SHRI S.K. GAULE, J. Represented By: Kishorilal for the Appellant. R.G. Sheth for the Respondent. ORDER 1. Heard both sides. 2. Revenue is in appeal against the order-in-appeal No. AKP/65/NSK/2010 dated 03/03/2010 whereby Commissioner (Appeals) has remanded the case to the lower adjudicating authority to decide it afresh. 3. Briefly stated facts of the case are that the appellant is engaged in providing service entered category of 'Authorized Service Station' and are accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the Revenue is that Commissioner (Appeals) has compared the amended Sub-section (3) of Section 35 of the Act and Sub-section 84(4) of Finance Act, 1994 and has not appropriated that the power of remand was coming from the words "or may refer the case back to the adjudicating authority", and has not appropriated the fact that expression was taken away after the amendment w.e.f. 11.5.2001. 5. The Ld. Counsel vehemently opposed the contention of the department and led emphasis that the provisions of under Section 85(4) and Section 35A are differently worded and submitted that the order of Ld. Commissioner (Appeals) remanding the case back to lower adjudicating authority in his order. In support of his contention he has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N open for fresh adjudication. However it is desirable that the adjudication proceedings on remand should be completed within 3 months. The appeals is disposed off accordingly." The Hon'ble Supreme Court in the case of MIL India Ltd. (supra) held that the power of remand by the ld. Commissioner (Appeals) has been taken away by amended Section 11A w.e.f. 11.5.2001 under the Finance Act, 1994. For the better appreciation whether the above decision is applicable to the instant case the relevant provisions of law are extracted hereunder: "Sub-section (3) of Section 35A before amendment. The Commissioner (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finds any infirmity in the order passed by the Adjudicating Authority or the order is found to be unsustainable, the Commissioner (Appeals) is certainly entitled to set aside such order and thereupon pass an appropriate order on merits by himself but not to remand the matter. Being so, Commissioner (Appeals) dealing with the appeals in relation to the service tax also is not empowered to remand the matter but he has to decide the matter by himself." Thus in case of service tax also the Commissioner is not empowered to remand the matter, he has to decide the matter by himself. Therefore the order of ld. Commissioner (Appeals) remanding the case to the lower authority, is not sustainable. However, I agree with the findings of the ld. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
