TMI Blog2020 (3) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 2(d) of notification by the Adjudicating authority is totally unwarranted and cannot be sustained. Whether Commissioner (Appeals) has power to remand the matter to Adjudicating Authority? - HELD THAT:- This being a case of refund of service tax, clearly covered by the ratio of Hon ble Gujarat High Court judgment in the case of COMMISSIONER OF SERVICE TAX VERSUS VERSUS ASSOCIATED HOTELS LIMITED [ 2014 (4) TMI 406 - GUJARAT HIGH COURT] . In the said judgment, the Hon ble High Court has also referred to the judgments of Hon ble Supreme Court in the case of MIL INDIA LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [ 2007 (3) TMI 8 - SUPREME COURT] . Therefore, the learned Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority, therefore, on this count also, Revenue s appeal does not sustain. Appeal dismissed - decided against Revenue. - Service Tax Appeal No. 10128 of 2015, 10129 of 2015, 10131 of 2015, 10132 of 2015, 10133 of 2015 - A/10860-10864/2020 - Dated:- 18-3-2020 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) AND HON BLE MR. RAJU, MEMBER (TECHNICAL) Shri S.K. Shukla, Superintendent (AR) for the Appellant Shri Hardik Modh, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute to the facts that the issue involved is only interpretation of Notification No. 17/2011-ST and various provisions of SEZ Act. Revenue is of the view that since the Respondent supplied the electricity generated in their power plant located in SEZ Mundra in DTA also they are not entitle for refund. We find that in the identical set of facts and also on the law point, this Tribunal in bunch of appeals filed by Revenue decided the issue vide order No. A/10147-10187/2016 dated 02.02.2016 wherein the Tribunal, after analyzing the relevant notifications, various provisions of SEZ Act and correspondence made with SEZ authorities and Ministry of Commerce and Industries, passed the following order:- 15. We find that there is no dispute that the assessee fulfilled the condition of Para 2(b) of the notification, as the assessee obtained a list of taxable services as required for authorized operation approved by the Approval Committee of the concerned SEZ. The learned Senior Advocate submits that the assessee does not own or carry out any business other than SEZ operation and furnished the declaration as per condition Para 2(c) of the notification. He has also referred to letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerated in a SEZ may be transferred to DTA on payment of duty on consumable and raw material used for generation of power. On a query from the Bench, the learned Senior Advocate submits that they have not availed the Cenvat credit on goods used for transmission power and cables used for transmission outside SEZ. It is clear that the assessee had not availed Cenvat credit on the raw materials or consumables used in the transmission of power in DTA. The learned Senior Advocate stated that the Ministry of Commerce vide Letter No. 6/3/2006-SEZ, dated 27.2.2009 which has been superseded by letter dated 21-3-2012 dispensed with the condition of earning net foreign exchange in the assessee s case (generation of power within SEZ). This shows that the assessee is not required to earn foreign exchange as it would not be possible for the assessee to earn foreign exchange. Mere selling of surplus power in DTA and installing dedicated transmission lines into DTA would not mean that the assessee owns or carries on any business other than the business in SEZ. 17. There is a distinction between the expression Sales in DTA as referred in Rule 47 of SEZ Rules and the words carry on any busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Approval for development, operation and maintenance of the sector specific SEZ for power sector for supply of power to SEZs, EOUs in Gujarat State and other SEZs and EOUs and others at Village Tunda and Siracha, Taluka Mundra, District Kutch, State of Gujarat. So, the assessee would be entitled to supply powers to SEZs, EOUs in Gujarat State and other SEZs and EOUs and others. The learned Authorised Representative submits that the word others in the said notification would apply to at Village Tunda and Siracha Taluka Mundra . We are unable to accept the contention of the learned Authorised Representative. The expression supply of power to Special Economic Zones (SEZs) and Export Oriented Units (EOUs) in Gujarat and other SEZs, EOUs and others in Notification, dated 10-5-2007 would be read together and the plurality of word Others would indicate the other places, apart from SEZs and EOUs. The said notification notifies the area at Village Tunda and Siracha, Taluka Mundra for set up of SEZ. Thus, it is clearly evident that Ministry of Commerce and Industry had approved supply of power in DTA. It is already observed that the supply of surplus power in DTA is not the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat in the case of Commissioner of Service Tax v. Associated Hotels Ltd. - 2015 (37) S.T.R. 723 (Guj.), on the identical issue dismissed the appeal filed by the Revenue. In that case, the question raised before the Hon ble High Court as to whether the CESTAT is correct in holding that in Service Tax matters, the Commissioner (Appeals) has power to remand the matter back to the adjudicating authority for de novo adjudication. The Hon ble High Court held as under : 15. We, however, cannot accept the argument of Ms. Mandavia that by virtue of sub-section (5) of Section 85, the same limitation on the Commissioner (Appeals) to remand a proceeding contained in Section 35A(3) of the Central Excise Act, 1944 must apply in the appeals under Section 85 of the Finance Act, 1994 also. This is so because, sub-section (5) of Section 85 though requires the Commissioner (Appeals) to follow the same procedure and exercise same powers in making orders under Section 85, as he does in the Central Excise Act, 1944 in appeals, this sub-section itself starts with the expression subject to the provisions of this Chapter . Sub-section (4) of Section 85 itself contains the width of the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 437/- 22. The learned Senior Advocate submits that there is a subsequent development on these issues, which they have stated in their respective appeals, such as; rejection of refund on the documents of M/s. Karnavati Aviation Pvt. Ltd., considering the service under the category of passenger embarking in India for international journey . Subsequently, it was classified by the Revenue under the category of Supply of Tangible Goods . We find that the Commissioner (Appeals) already remanded some portion of the refund for verification. So, it is appropriate that the adjudicating authority should also examine the above issues on merit in de novo adjudication. 23. In view of the above discussion, the appeals filed by the assessee are disposed of by way of remand to the adjudicating authority. The appeals filed by the Revenue are rejected. 5. From the above judgment, it can be seen that present appeals involve identical facts and legal issue which was dealt in the above order. Therefore, we feel that there is no need for further discussion and findings. 6. As regards the issue that whether Commissioner (Appeals) has power to remand the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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