Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Orient Crafts Ltd on 19 November, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING : 19/11/2010. DATE OF DECISION : 19/11/2010. Service Tax Appeal No. 1039 of 2010 [Arising out of the Order-in-Appeal No. 111-12/ST/Appl./Noida/ 2010 dated 08/04/2010 passed by The Commissioner (Appeals), Customs, Central Excise & Service Tax, Noida.] For Approval and signature : Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? CCE, Noida Appellants Versus M/s Orient Crafts Ltd. Respondent
Appearance Shri Amrish Jain, Authorized Representative (SDR) for the Appellants.
Shri Dinesh Mittal, DGM (Commercial) for the Respondent.
CORAM : Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical) Order No. ________________ Dated : ,,,,,,,,,,,_____________ Per. Shri Justice R.M.S. Khandeparkar :-
By consent of both the sides, matter is taken up for final disposal. Heard the DR for the appellants and Shri Dinesh Mittal, DGM for the respondent. Though the impugned order is sought to be challenged on various grounds, it is not necessary to refer to all those grounds and suffice to refer to only one ground namely absence of jurisdiction to the Commissioner (Appeals) to remand the matter. Indeed by the impugned order, the Commissioner (Appeals) has remanded the matter to the Adjudicating Authority to decide about the refund claim, bearing in mind, the observations made by him in his order.
2. Section 85 of the Finance Act, 1994 deals with the subject of the appeal before the Commissioner (Appeals) in relation to service tax matter. Sub-section (4) thereof provides that the Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of said chapter 5 of the Finance Act, pass such orders as he thinks fit and such orders 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.
3. It is true that referring to said provision of law it could be argued that the Commissioner (Appeals) may pass the order as he thinks fit and the same may include order of remand. However, the scope of such power is further controlled by sub-Section (5) of the Section 85 of the said Act. Sub-section (5) provides that 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 same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944. In other words, the powers of the Commissioner (Appeals) while deciding the appeals before him are same as that of the Commissioner (Appeals) dealing with the appeals under the Central Excise Act, 1944.
4. It is settled law that the Commissioner (Appeals) dealing with the appeals under Central Excise Act, 1944 lacks jurisdiction to remand the matter to the Adjudicating Authority. The law provides that in case the Commissioner (Appeals) finds any infirmity in the order passed by the Adjudicating Authority or the order is found to be unsustainable, the Commissioner (Appeals) is certainly entitled to set aside such order and thereupon pass an appropriate order on merits by himself but not to remand the matter. Being so, Commissioner (Appeals) dealing with the appeals in relation to the service tax also is not empowered to remand the matter but he has to decide the matter by himself.
5. Considering the law, as above, the impugned order to the extent it remands the matter cannot be sustained and is liable to be set aside and the matter is to be remanded to the Commissioner (Appeals) to deal with the issue relating to the claim of refund by himself in accordance with provisions of law.
6. We make it clear that we have not expressed any opinion on the merits of the case.
7. Accordingly, the appeal is allowed on the limited ground as stated above. The impugned order to the extent set aside and the matter is remanded to the Commissioner (Appeals) to deal with the issue of refund claim in accordance with provisions of law.
(Justice R.M.S. Khandeparkar) President (Rakesh Kumar) Member (Technical) PK