TMI Blog2017 (10) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-SM, ST/1859/2011-SM, ST/1860/2011-SM - Final Order No. 21953-21956 / 2017 - Dated:- 6-9-2017 - Shri S. S. Garg, Judicial Member Smt. Kavitha Podwal, Superintendent ( AR ) For the Appellant Shri Kuber V. Hundeka, Chartered Accountant For the Respondent ORDER Per : S.S GARG These four appeals have been filed by the Revenue against the common impugned order passed by the Commissioner(Appeals) dt. 16/03/2011, whereby the Commissioner(Appeals) has remanded back to the adjudicating authority for quantification of refund. Since all the four appeals have been disposed of by a common impugned order and the issue in all the four appeals is identical, all the four appeals are being disposed of by this common order. 2. Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Commissioner(Appeals) directed the original adjudicating authority to quantify the eligible refund amount on input services on the basis of facts and documents along with Chartered Accountant certificate. Aggrieved by the said order of remand, Revenue has filed these four appeals. 3. Heard both the parties and perused records. 4. Learned AR for the Revenue has submitted that the impugned order is contrary to the statutory provisions as contained in Section 35A(3) of the Central Excise Act, 1944 vide which the learned Commissioner(Appeals) does not have the power to remand the matter back to the adjudicating authority. She further submitted that the respondent company has failed to explain how exactly the impugned order has sanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the procedures to be following under the Central Excise Act. Thus, sub-section (3) of Section 35-A of the Central Excise Act cannot be superimposed into sub-section (5) of Section 85 of the Finance Act. What is crucial to note is that sub-section (4) of Section 85 provides the manner in which the Commissioner(Appeals) shall hear and determine an appeal and it only states that he can pass orders as he thinks deem fit. This provision is in paramateria to Section 128(2) of the Customs Act, which was considered by the Hon ble Supreme Court in Union of India Vs. Umesh Dhaimode (supra) and it was held that the said provisions would include the power to remand. Therefore, the argument advanced by the learned counsel for the petitioner by read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld in the following decisions also:- i. Ramesh Enterprises [2011-TIOL-200-CESTAT-MAD] ii. World Vision [2010-TIOL-290-CESTAT-Del.] 6. Learned consultant further submitted that after the remand, the original authority has quantified the refund as per the directions given by the remand order and has also placed various orders sanctioning the refund. 7. In view of the facts and circumstances, I am of the considered opinion that there is no infirmity in the impugned order whereby the Commissioner(Appeals) has only remanded the matter to requantify the refund amount. Further I also hold that the power of Commissioner to remand a matter has been upheld by various decisions cited supra. Therefore, by following the ratios of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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