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TMI Blog2012 (8) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... Miscellaneous Application for condonation of delay, we take up the Appeal for disposal. 3. The Appellant filed this Appeal against the Order-in-Appeal No. 184-185/ST/KOL/2011 dated 30.06.2011, whereby ld. Commissioner (Appeals) has remanded the case to the lower Adjudicating Authority. 3.1. Briefly stated facts of the case are that the Respondent filed a refund claim amounting to Rs.24,18,664/- and paid on specified services used for export of the goods in terms of Notification No.41/2007-ST dated 6.10.2007. The lower authority rejected the refund claim. The Respondent challenged the same before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) vide his Order dated 30.6.2011, remanded the matter to the lower Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Supreme Court in the case of Mil India Ltd. Vs. Commr. of Central Excise, Noida reported in 2007 (210) ELT 188 (SC). 5. The Respondent also filed a Cross Objection on the ground that Section 35A (3) is not covered under Section 83 of Finance Act, 1994. The provision of Section 85(4) of Finance Act, 1994, is different from Section 35A(3) of Central Excise Act, 1994 and hence, the ld. Commissioner (Appeals) has power to remand the case. 6. We have carefully considered the submissions and perused the records. The ld. Commissioner (Appeals) has ordered in his impugned order as under : 4.1. I have carefully gone through the records of the case. The adjudicating authority has observed in his order that - Regarding Scientific & Technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pvt. Ltd. no invoice was submitted. Further, Courier service was made eligible for refund vide notification no.3/2008-ST dated 19.02.08, hence not applicable for the quarter ending Dec, 07; Refund on GTA service was not placed on actual expenditure, but on a proportionate calculation. which is not admissible. 4.2. The appellants stated that as alleged some service providers registered under some head but rendered services under different other heads which are permitted under notification nos.4l/2007-ST and 3/2008-ST. The appellants cannot be penalized for this mistake of the service providers. They have referred to Circular No.112/6/2009-ST dated 12.3.09 in Sl. No.VII of which it is stated- Notification No. 41/2007 S.T. provides exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents before the sanctioning authority for examination. The appellants have not denied that they did not submit the documents stated above, which they have submitted here. I observe that they should submit the documents before the sanctioning authority for his examination and satisfaction before sanctioning the claims. 5. In view of above, I set aside the Orders-in-Original dated 14.10.08 and 06.10.08 and remand the matter to the Original authority to decide the matters afresh after considering the arguments of the appellants and documents to be submitted by them. 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 35A w.e.f. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t : It is settled law that the Commissioner (Appeals) dealing with the appeals under Central Excise Act, 1944 lacks jurisdiction to remand the matter to the Adjudicating Authority. The law provides that in case the Commissioner (Appeals) 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 (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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