Custom, Excise & Service Tax Tribunal
Cc,Ce&St, Hyderabad-Iv vs Oia No.09/2012 (H-Iv)S.Tax ... on 20 August, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:20/08/2013
Date of decision:20/08/2013
Sl.
No.
Application
No.
Appeal
No.
Appellant
Respondent
Impugned Order
1.
ST/Stay/871/
2012
ST/1250/2012
M/s. Convergys Information Management (India) Pvt. Ltd.
CC,CE&ST, Hyderabad-IV
OIA No.09/2012 (H-IV)S.Tax dt.31/01/2012
2.
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ST/1475/2012 CC,CE&ST, Hyderabad-IV M/s. Convergys Information Management (India) Pvt. Ltd.
-do-
Appearance Mr. Harish Bindhumadhavan, Advocate for the assessee.
Mr. A.K. Nigam, Addl. Commissioner(AR) for the Revenue.
Coram:
Honble Shri S.S. Kang, Vice President Honble Shri B.S.V. Murthy, Member(Technical) FINAL ORDER Nos.26397-26398/2013 [Per S.S. Kang] M/s. Convergys Information Management (India) Pvt. Ltd. filed appeal along with application for stay of operation of the impugned order whereby the Commissioner(Appeals) has remanded the matter in respect of the refund claim to the adjudicating authority. Revenue also filed an appeal against the same impugned order. Since the issue falls in a narrow compass, we are inclined to take up the appeal itself for disposal. Accordingly, stay application is allowed and appeal is taken up for disposal.
2. Both sides submitted that after the amendment to Section 35A of the Central Excise Act which is applicable to the appeals filed under Service Tax as per the provisions of Section 85 of the Finance Act, Commissioner(Appeals) has no power to remand w.e.f. 11/05/2001 as the power to remand specifically withdrawn under the Finance Bill 2001.
3. We have gone through the order passed by Commissioner(Appeals). In his order in para 7, Commissioner(Appeals) noted the issue and also noted the fact that the evidence in support of the claim filed by the assessee has not taken into consideration by the lower authority. In view of this, Commissioner(Appeals) has remanded the matter to the adjudicating authority to decide afresh after relying upon the decision of learned Single Member of this Tribunal in the case of World Vision reported in 2010(20) STR 49 (Tri. Del.)
4. Both sides submit that they rely upon the decision in the case of MIL India Ltd. Vs. CCE, Noida [2007(210) ELT 188 (SC)].
5. We find that both sides are relying upon the amendments to Section 35A of Central Excise Act which are applicable to the appellants in respect of service tax also. We find that as per the amended provision of Section 35A, the power to remand has been specifically withdrawn w.e.f. 11/05/2001 under the Finance Bill 2001. We further find that the Honble Supreme Court in the case of MIL India Ltd. (supra), relied upon by both sides, also observed that the Commissioner(Appeals) has no power to remand and this view has been followed by the Honble Punjab & Haryana High Court in the case of CC, Amritsar Vs. Enkay (India) Rubber Co. P. Ltd. [2008(224) ELT 393(P&H)]. In view of the above, we find merit in the contention of both sides that Commissioner(Appeals) has no power to remand. Hence, the impugned order is set aside and the matter is remanded to the Commissioner(Appeals) to decide the matter on merits. Both appeals are allowed by way of remand.
(Pronounced and dictated in open court)
(B.S.V. MURTHY) (S.S. KANG)
MEMBER (TECHNICAL) VICE PRESIDENT
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