TMI Blog2021 (9) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... OURT OF PUNJAB HARYANA AT CHANDIGARH ], referred to by revenue in the appeal filed, then also we remand the matter for decision by the adjudicating authority on merits as have been done by the Commissioner (Appeals). It is nobody's case that, there are no power to do so. The end of justice will be met if the appeal filed by Revenue is allowed to the extent that the Commissioner (Appeals) could not have remanded the matter back - appeal allowed by way of remand. - ST/85755/2020 - A/86744/2021 - Dated:- 7-9-2021 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Anand Kumar, Additional Commissioner, Authorised Representative for the Appellant Shri Gopal Mundra, Advocate, for the Respondent ORDER This appeal along with the stay application has been filed by the revenue against the order in appeal No CKJ/GST/AI/ Mum/277/2019-20 dated 06.01.2020 of the Commissioner GST and CX (Appeals-I) Mumbai. By the impugned order Commissioner (Appeal) has held as follows: 9. In view of the above refund claims cannot be regarded as time barred. O-I-O No CGST/Refunds/GM/11/2019-20 dated 30.09.2019 passed by Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is expression of necessary intendment in deletion of the aforementioned expression by the Legislature. In that regard we place reliance on the judgments of Hon ble the Supreme Court in the cases of Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, (1999) 8 SCC 16; and Garikepadi Veeraya v. Subbiah Choudhry, AIR 1957 SC 540. Similar view has been adopted in the following cases:- (i) The Hon ble Supreme Court in case of MIL India Ltd.- 2007 (210) ELT 188 (SC), and (ii) CCE Jallandhar v/s B C Kataria [2008 (221) ELT 508 (P H)] Accordingly, the Commissioner (Appeals) should have decided the case himself instead of remanding it back for decision on merits. 3. Today the matter has been listed for consideration of the stay application. Stay application is dismissed. As the appeal has been preferred by the revenue raising a question in very narrow compass, appeal of Revenue is taken up for final disposal. 4.1 We have heard Shri Anand Kumar, Additional Commissioner, Authorized Representative for the revenue and Shri Gopal Mundra, Advocate for the respondents. 4.2 Learned Authorised Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r : (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to 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 of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944). It can thus be seen that under sub-section (4) of Section 85 of the Finance Act, 1994, the Commissioner (Appeals) hearing the appeals can pass such orders as he thinks fit subject to the provisions of Chapter 130 in which the said section is contained and such orders may include an order enhancing the service tax, interest or penalty. Proviso to sub-section (4) provides that no orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(2) of the Customs Act, 1962 as it stood at the relevant time, held and observed as under : 2. As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision, read together, necessarily imply that the appellate authority has the power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision. 7. The Delhi High Court in the case of Commissioner of Service Tax v. World Vision - 2011 (24) S.T.R. 650 (Del.), in the context of Section 85 of the Finance Act, 1994 itself confirmed the decision of the CESTAT holding that the Commissioner (Appeals) would have power to remand the proceedings to the adjudicating authority. 8. Insofar as Section 85(4) of the Finance Act, 1994 is concerned, our view is clear and we agree with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 power of remand of the Commissioner (Appeals) under Section 35A(3) of the Central Excise Act, 1944. In such a situation, the question would arise whether the decision of this Court in the case of Medico Labs (supra) would continue to hold the field even after the decision of the Supreme Court in the case of MIL India Ltd. (supra). The person aggrieved, be it Revenue or the assessee, would of course, contend that when there was conscious decision of the Legislature to amend certain power of remand which was previously specifically provided in the statute, the same would amount to taking away powers which hitherto existed. We need not, however, enter into this arena because in the present case, we are not concerned with this provision of appeal. 15. We, however, cannot accept the argument of Ms. Mandavia that by virtue of sub-section (5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition regarding availability of the power to remand to the Appellate Commissioner under provisions of the Finance Act, 1994 was directly considered by the Gujarat High Court in CST v. Associated Hotels Ltd. - 2014-TIOL-463-HC-AHM-ST. The High Court having considered several authorities including the judgment of the Supreme Court in MIL India Ltd., provisions of Section 35A(3) of the Central Excise Act, 1944 and provisions of Section 85(4) of the Finance Act, 1994, concluded that the power of remand continues to inhere in the Commissioner (Appeals), in an appeal preferred under provisions of 1994 Act. 7. Revenue does not contest the impugned order on any other ground. 8. In the above circumstances, as the Appellate Commissioner has the power to remand the matter to the primary authority having regard to the amplitude of the appellate jurisdiction conferred on him under Section 85(4) of the Finance Act, 1994 the contention by Revenue to the contrary does not commend acceptance by this Tribunal. The appeal is without merits and is accordingly dismissed. 5.4 In the case of Honeywell Technology Solutions Lab P. Ltd. [2012 (26) STR 326 (T-Bang)], Bangalore bench of CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) has in the impugned order arrived at the finding that the refund claim could not have been rejected on the ground of limitation, he had no option but to allow the opportunity to the original authority for consideration of the refund claim on merits. This finding of the Commissioner (Appeal) on the issue of limitation has not been challenged by the revenue in the appeal filed. To the specific query put by the bench in respect of challenge to this finding in appeal, learned authorized representative affirmed that this finding has not been challenged. Thus we do not find any infirmity in the reasoning recorded by the Commissioner (Appeals) for remanding the matter as per the para 7 and 8 of the impugned order reproduced below: 7. On perusal of Para 13 and 14 of the impugned O-I-O it is seen that the refund claims were rejected on the grounds that they were held to be time barred. The sanctioning authority referred to Section 11B of CEA 1944 and held that the relevant date mentioned in the section was as per clause (f) of Section 11B(2) of CEA 1944. In this regard I find that this provision does not apply to cases where duty is paid under protest . This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of being heard to a party in a proceeding, if the party so desires. (2) The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the proceeding.] In a number of cases it has been held that taking decision without conducting personal hearing was bad in law. The procedures prescribed have to be followed, and as the same was not done, the order passed has to be regarded as bad in law, and deserves to be remanded back to the sanctioning authority for de novo adjudication.... 5.6 Even if we hold that Commissioner (Appeal) could not have remanded the matter back following the decisions of Hon ble Apex Court and Hon ble Punjab Haryana High Court, referred to by revenue in the appeal filed, then also we remand the matter for decision by the adjudicating authority on merits as have been done by the Commissioner (Appeals). It is nobody's case that we do not have power to do so and is in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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