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2016 (12) TMI 36 - CESTAT HYDERABAD

2016 (12) TMI 36 - CESTAT HYDERABAD - TMI - Jurisdiction - whether the Commissioner (Appeals), while decising a service tax appeal has powers to remand the matter to the adjudicating authority? - Held that: - it is clear that the sub-section 4 of Section 85 of Finance Act, does not specifically curtail the power to remand as in the case of Section 35 (A) (3) Central Excise Act. - Reliance placed on the decision of the case of CST Vs Associated Hotels ltd. [2014 (4) TMI 406 - GUJARAT HIGH COU .....

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016 - Ms. Sulekha Beevi, C.S., Member (Judicial) Shri Nagraj Naik, AR for the Appellant Shri P.Dwarakanath, Advocate for the Respondent ORDER [ Order per Sulekha Beevi, C. S. ] 1. The above appeals are filed by the department challenging the order passed by the Commissioner(Appeals) which remanded the matter to the original adjudicating authority. 2. The Ld AR Shri Nagaraj Naik submitted that as per amended provisions of Section 35(A)(3) of Central Excise, Act, 1944 w.e.f. 11-05-2001, the powers .....

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id in M/s MIL India Ltd. Vs CCE Noida, 2007-(210) ELT-188(SC) and also Cochin International Airport Vs CCE Cochin 2011 (21)-STR-169 (Tri.Bang). 3. On behalf of the Respondent, the Ld consultant, Shri P.Dwarakanath, advanced his arguments, adverting to the sub-section 4, Section 85 of Finance Act, 1994. He submitted that, the said sub-section, does not curtail the power of the Commissioner (Appeals) to remand the matter to the original authority. He drew support from the judgment laid by the Hon& .....

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o the provisions of this Chapter pass such orders as he thinks fit and such order may include an order enhancing the service tax, interest or penalty. Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity to showing cause against such enhancement. 6. In the case of CST Vs Associated Hotels ltd. relied upon by the Ld. Consultant, appearing for respondent, the Hon'ble High Court has dis .....

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ion to a later decision of the Supreme Court in the case of MIL India Ltd. v. Commissioner of C.Ex., Noida - 2007 (210) E.L.T. 188 (S.C.) in which in the context of the nature of order passed by the appellate Commissioner, whether it can be treated as an order of assessment, the Court observed that with effect from 11-5-2001, by amending Section 35A of the Central Excise Act, power of remand of the Commissioner (Appeals) has been taken away. 14. In the present case, we are not concerned with the .....

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