Custom, Excise & Service Tax Tribunal
Commr. Of Service Tax, Kolkata vs M/S T. T. S. Systemetix Pvt. Ltd on 13 July, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
S.T.Appeal No.267/10
Arising out of O/A No.72/ST/2010 dated 31.03.2010 passed by Commr. of Service Tax, Kolkata.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
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 should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Service Tax, Kolkata
APPELLANT(S)
VERSUS
M/s T. T. S. Systemetix Pvt. Ltd.
RESPONDENT (S)
APPEARANCE Shri S. Chakraborty, Asstt. Commissioner (A.R.) for the Department None for the Respondent (s) CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION : 13. 07. 2012 ORDER NO.. Per Dr. D. M. Misra :
This is an appeal filed by the Revenue against Order-in-Appeal No. 72/ST/2010 dated 31.03.2010.
2. Heard the ld. A.R. for the Department. None present for the respondent.
3. Briefly stated the facts of the case are that the respondents herein are rendering service in the category of Consulting Engineering, who alleged to have violated various provisions of the Finance Act, 1994 including non-registration with the Service Tax Department and failure to pay service tax on the said category during the period 2000-2001 and 2001-2002. They were issued with a demand notice for recovery of service tax of Rs.62,318/-, which was confirmed by the adjudicating authority and penalty of Rs.62,000/- was imposed under Section 75A, 76 and 78 of the Finance Act, 1994. Aggrieved by the said Order, the Respondents had filed an appeal before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) set aside the order passed by the adjudicating authority and remanded the matter for denovo adjudication. Hence, the Revenue is in appeal.
4. The ld. A.R. appearing for the Revenue, has argued that the order of the ld. Commissioner (Appeals) is incorrect as he does not have jurisdiction/authority to remand the case to the adjudicating authority for denovo consideration. In support of his above contention, he has referred to the judgment of the Honble Supreme Court in the case of M/s MIL India Ltd.-2007 (210) ELT 188 (SC) and Tribunal in the case of Commissioner of Central Excise, Noida v. Orient Craft Ltd. reported in 2011 (21) S.T.R. 302 (Tri.-Del.).
5. I find the short point involved in this appeal filed by the Revenue is whether the ld. Commissioner (Appeals) has power to remand the case to the lower adjudicating authority for denovo adjudication. I find that by an amendment to Section 35A of Central Excise Act, 1944 w.e.f. 11.5.2011, the power of remand has been specifically withdrawn by the legislature . The Honble Supreme Court in MIL India case (supra) has also held that the ld. Commissioner (Appeals) under the amended provision, does not have power to remand the case. No doubt, the appeal in question before ld. Commissioner (Appeals) relates to an appeal under Section 85 of the Finance Act, 1994, however, in view of Sub-section (5) of Section 85 of the Finance Act, 1994, the powers conferred relating to hearing and passing an order and the procedure to be followed for disposal of appeal under the Finance Act, 1994 are same as that of exercised by Commissoner (Appeals) under the provision of Section 35A of the Central Excise Act, 1944. I find that in the decision of the Division Bench of this Tribunal in the case of Commissioner of Central Excise, Noida v. Orient Craft Ltd. (supra) after considering the provisions prescribed under Section 35A, it has been held that the embargo on the power of remand in Section 35A is squarely applicable to the provisions of Section 85 of the Finance Act, 1994. In these circumstances, I am of the opinion that the ld. Commissioner (Appeals) does not have power under Section 85 (4) of the Finance Act, 1994 to remand the case to the lower adjudicating authority. However, on going through the findings of the ld. Commissioner (Appeals), I find that the issues considered therein are required to be examined by the adjudicating authority. In these circumstances, I remand the case to the adjudicating authority for deciding the issue afresh after considering all aspects of the matter. Needless to mention, an adequate opportunity of hearing may be granted to the respondent. The order of the ld. Commissioner (Appeals) is set aside and the appeal filed by the Revenue is allowed by way of remand.
Dictated and pronounced in the open Court.
Sd/ ( DR. D. M. MISRA ) JUDICIAL MEMBER mm 4 S.T.Appeal No.267/10