Custom, Excise & Service Tax Tribunal
Cst, Bangalore vs M/S. Byte Consulting Pvt. Ltd on 27 December, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing: 27/12/2010
Date of decision:27/12/2010
Appeal No.ST/1990-1991/10;
Appn. No.ST/St/1188-1189/10
(Arising out of Order-in-Appeal No.225 & 226/2010 dt. 21/6/2010 passed by CCE(Appeals), Bangalore)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CST, Bangalore
..Appellant(s)
Vs.
M/s. Byte Consulting Pvt. Ltd.
Respondent(s)
Appearance Mr. K.S. Chandrasekhar, JDR for the Revenue.
None for the respondent.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran These two stay petitions are filed by the Revenue for staying the operation of the impugned orders passed by the ld. Commissioner(Appeals) against two Orders-in-Original.
2. None appears on behalf of the respondent despite notice. Since the issue involved in this case is in narrow compass, I take up the stay petition for disposal in the absence of any representation from the assessee/respondent. After hearing the ld. DR on the stay petitions for some time, I find that the appeals themselves could be disposed at this juncture as they are falling in narrow compass. After dismissing the stay petitions for staying the operation of the impugned orders, I take up the appeals for disposal.
3. Ld. DR submits that the ld. Commissioner(Appeals) has allowed the appeals but with a condition that refund is subject to submission of Chartered Accountants certificate which is as good as remanding the matter back to the Adjudicating Authority. He would submit that Honble Supreme Court in the case of Mil India ltd. [2007(210) ELT 188 (SC)] held that Commissioner(Appeals) has no powers to remand the matter back to the Adjudicating Authority.
4. On careful perusal of the records, I find that the ld. Commissioner(Appeals) could have taken a view himself on that matter in stead of remanding the matter back to the Adjudicating Authority to sanction the refund subject to production of Chartered Accountants certificate. Ld. Commissioner(Appeals) could have directed the assessee to produce the Chartered Accountants certificate to him and could have come to a conclusion. I concur with the views expressed by the ld. DR that the ld. Commissioner(Appeals) could not have remanded the matter back to the Adjudicating Authority in view of the judgment of the Honble Supreme Court in the case of Mil India Ltd.(supra).
5. In view of this, the impugned orders are set aside and matter is remanded back to the ld. Commissioner(Appeals) to re-consider the issue and to decide the issue at his level only. Appeals are allowed by way of remand. Stay petitions are also disposed off.
(Pronounced and dictated in open court) (M.V.RAVINDRAN) MEMBER (JUDICIAL) Nr 3