TMI Blog2021 (9) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... hether he has accepted the reasoning of the Original Adjudicating Authority or is rejecting the same. The order is silent about any proposed modification. It simply has directed the Original Adjudicating Authority to reconsider directing the detailed examination in terms of Circular No. 117/11/2009-ST dated 30.10.2009 and Place of Provisions Rules, 2012 and also in the light of the concept of negative list of services as prevalent from 01.07.2012 onwards. In Section 35A(3) as exists on date, sending back the matter to Original Adjudicating Authority with such directions is no more in competence of Commissioner (Appeals) since Section 35A (3) stands amended with effect from 11.5.2001. The order under challenge is not either of the one a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviding taxable service of tour operator. On the basis of information as was received regarding non payment of service tax by the registered private tour operators for Haj Pilgrimage; that the profit o such account of respondents were checked from the period 1.10.2013 to 31.3.2017. Observing the non-payment of service tax that a recovery of amount of ₹ 48,24,510/- along with the interest at the appropriate rate and proportionate penalty was proposed by the Show Cause Notice dated 12/Gr.2/211/Musafir/17/2417 dated 22.4.2019. In adjudication, the demand was dropped vide Order-in-Original No.02/20019-20 date 31.7.2019. The Show Cause Notice was held to be beyond the normal period of limitation. An appeal was preferred by the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also relied upon the judgement of Hon ble High Court of Punjab and Haryana in the case of Commissioner of Central Excise, Jalandhar vs. B C Kataria reported in [2008 (221) ELT 508 (P H)]. With these submissions, learned Authorised Representative has prayed for order under challenge to be set aside and appeal of the Department to be allowed. 4. While rebutting the submissions, learned Counsel for the respondent has mentioned that despite the amendment dated 11.5.2001 in Section 35 A(3) o CEA, the power of remand still vests with Commissioner (Appeals) as the power to annul order of Adjudicating Authority still lie with the Commissioner (Appeals). Learned Counsel has relied upon a decision of this Tribunal Ahmadabad Bench in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 35A talks about the procedure with respect to the said filing. Sub-section 3 of section 35 A reads as follows: SECTION 35A. Procedure in appeal. - (3) [The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against :] 6. There is no dispute that this section prior to 11.5.2001 used to read as follows:- SECTION 35A. Procedure in appeal. - (3) The Commissioner (Appeals) may, after making such further inquiry as may be necessary, pass such order, as he thinks for confirming, modifying or annulling the decision or order appealed against, or may refer the case back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) stand devastated of power to remand the matter back to the Adjudicating Authority as the said power stands deleted with effect from 11.5.2001. 7. Though learned Counsel has impressed upon that since the power to annul is still there, same includes the power to remand. But I am not in conformity of the said submission as neither the word annul nor remand is defined under any of the Act either the Customs Act or Central Excise Act. If we go by the respective dictionary meaning, annulling means rejection. Remand by itself, means referring back for further consideration. As apparent from the impugned order under challenge, Commissioner (Appeals) has not reflected the opinion as to whether he has accepted the reasoning of the Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interpretation can be held to have been passed either under the power of annulling or the power of confirming or the power of modifying. 8. Learned Counsel for the respondent assessee has laid too much emphasis on the decision of Commissioner of Customs, Jamnagar vs. Reliance Industries Ltd. (supra) on Para 9 to 10 thereof with the mention that the decision of Hon ble Supreme Court in MIL India Ltd. (supra) has duly been referred as contrary to the decision of Hon ble Apex Courts itself in the case of Umesh Dhiamode reported as [1998 (98) ELT 584]. But I observe that the decision in Umesh Dhiamode (supra) is passed in year 1998. Apparently and admittedly, the decision is prior to impugned amendment of section 35A(3). MIL India (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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