Custom, Excise & Service Tax Tribunal
Cce Pune I vs Sai Advantium Ltd on 1 June, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPLICATION NO. E/S/2167/10
IN APPEAL NO. E/2008/10 Mum
(Arising out of Order-in-Appeal No. PI/RKS/155/2010 dated 24.09.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Pune I.)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Pune I
:
Appellant
Versus
Sai Advantium Ltd.
Respondent
Appearance Shri Ashish Philip Advocate for Appellant Shri A.K. Prabhakar, Supdt. (A.R.) for Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 01.06.2012 Date of Decision : 01.06.2012 ORDER NO.
Per Ashok Jindal This is an appeal filed by the Revenue. The Revenue has also filed an application for seeking stay of operation of the impugned order of the Commissioner (Appeals) who set aside the Commissioners order rejecting the refund claim of the assessee and remanded the matter back to the adjudicating authority.
2. The contention of the Revenue is that the provisions of law clearly disclose that pursuant to amendment brought out in the year 2001, the power of remand which was earlier available to the Commissioner (Appeals) has been specifically deleted from the statute book. The Honble Apex Court in the case of MIL India Ltd. vs. CCE, Noida 2007 (210) ELT. 188 (S.C.) held that the power of remand by Commissioner (Appeals) has been taken away by amending Section 35A with effect from 11.5.2001 under the Finance Bill, 2001. Therefore, the impugned order be set aside and remit the matter back to the Commissioner (Appeals) to pass an order on merits.
3. Heard both sides and considered the submissions.
4. In the impugned order, the Commissioner (Appeals), after going through various findings has held that the order-in-original is liable to be set aside. Thereafter, he remanded the matter back to the adjudicating authority with a direction to verify the invoices issued by the service providers Hyderabad Office to ascertain as to whether the refund claim is maintainable or not. Therefore, I do not find any infirmity in the impugned order. Considering the submissions made by the learned A.R. I remand the matter back to the adjudicating authority to decide the refund claim afresh as directed by the Commissioner (Appeals) thereafter to pass an appropriate order.
5. Appeal is allowed by way of remand. Stay application is also disposed of in the above manner.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 3