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TMI Blog2012 (8) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim amounting to Rs.11,92,703/- 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 has sanctioned an amount of Rs.33,188/- out of total refund claim of Rs.11,92,703/- and the remaining amount of refund claim was rejected. The respondents challenged the same before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) vide his order dated 25.8.2011, remanded the matter to the lower authority. The revenue challenges the same. Hence the appeal. 3. The contention of the Revenue is that the power of remand by the ld. Commissioner (Appeals) has been taken away. The contention is that Section 85 of the Finance Act, 1994 corresponds to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The provision of Section 85 (4) of Finance Act, 1994, is different from Section 35A (3) of Central Excise Act, 1994 and hence, Commissioner (Appeals) has power to remand the case. 5. We have carefully considered the submissions and perused the records. The ld. Commissioner (Appeals) has ordered in his impugned order as under : I have carefully gone through the records of the case. In respect of DEBEX s appeal, refund claim of service tax of 70,512/- was rejected by the lower authority owing to the reason that Input invoices cannot be correlated with export documents and rejection of refund claim of service tax of Rs.10,90,003/- was rejected by the lower authority owing to the reason that the appellant had neither submitted impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 passed by the Commissioner (Appeals), Kolkata and said to be accepted by Committee of Commissioners holding such services as port services and for which no correlation of input invoices & export documents is required. They also cited and referred to case law of CCE-Vs. M/s Dishman Pharma & Chemical Ltd.-2010 (18) STR 214 (T) wherein Hon ble Tribunal has held that . Refund of service tax on services used in export of goods Refund rejected as invoices issued by transport agencies giving details of export services, not produced Contention that lorry receipts and shipping bills specify relevant details on export goods, not rebutted denial of refund on technical grounds not justified and in case of R. Prabin Chandra- 2010 (18) STR 796 (Commr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 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 the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary . However the situation has changed after the amendment carried out by Finance Act, 2001 came into effect from 11-5-2001. The changed legal position of sub-section (3) of Section 35A is as under :- Sub-section (3) of Section 35A after amendment The Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) remanding the case to the lower authority, is not sustainable. However, We agree with the findings of the ld. Commissioner (Appeals). Therefore, the amendment to Section 35A would apply to the present case. However, we find that the above aspects are required to re-examined by the lower adjudicating authority. Accordingly, we remand the matter to the lower adjudicating authority for deciding the issue afresh. It is made clear that all the issues are kept open. Needless to say, a reasonable opportunity of hearing may be given to the respondents. Appeal is allowed by way of remand. Cross Objection filed by the respondent is also disposed off.
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