Custom, Excise & Service Tax Tribunal
National Fertilizers Ltd vs Cce & S.T., Indore on 6 April, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT III
Service Tax Appeal No. ST/50142/2016-ST
[Arising out of Order-in-Appeal No.MUM-II-STAX-000-APP-07-15-16 dated 10.11.2016 passed by the Commissioner (Appeals), Service Tax II Mumbai]
For approval and signature:
HONBLE MR. S.K. MOHANTY, 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?
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 of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
National Fertilizers Ltd. Appellant
Vs.
CCE & S.T., Indore Respondent
Present for the Appellant : Shri.R. Krishnan, Advocate Present for the Respondent: Shri.Vaibhav Bhatnagar, D.R. Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) Date of Hearing/Decision: 06/04/2016 FINAL ORDER NO. _______________ PER: S.K. MOHANTY
Feeling aggrieved with the impugned order dated 10.11.2015 passed by the Commissioner (Appeals), Service Tax, Mumbai, the appellant has preferred the appeal before this Tribunal. The grievance of the appellant in this appeal is that in terms of Section 35 A (3) of the Central Excise Act, 1944 (as made applicable to the provisions of Finance Act, 1994), the Commissioner (Appeals) is divested of power to remand the case back to the Adjudicating Authority, which has been specifically taken away by the Finance Act, 2001 w.e.f. 11.05.2001.
2. Heard the ld. Counsel for both sides and perused the records.
3. I find that the Commissioner (Appeals) vide paragraph 14 in the impugned order has remanded the matter back to the jurisdictional Service Tax Authorities to admit the refund claim and for deciding the same on merits. In the impugned order, it has also been observed that the eligibility of refund, limitation of time, doctrine of unjust enrichment etc. shall be examined by the Jurisdictional DC/AC before deciding the refund claim.
4. The short question involved in this appeal for consideration by this Tribunal is as to whether the Commissioner (Appeals) has the power to remand the matter back to the Original Authority for de-novo adjudication in terms of Section 35A (3) ibid.
5. Section 35 A (3) ibid prior to its amendment (upto 10.05.2001) empowered the Commissioner (Appeals) for referring the case back to the Adjudicating Authority. However, the said statutory provision was amended w.e.f. 11.05.2011, specifically curtailing the power of the Appellate Commissioner for sending back the case to the adjudicating authority. In other words, the effect of amendment in the said statutory provision is that the Commissioner (Appeals) in the capacity of an Adjudicating Officer has to adjudicate the matter by himself, if certain aspects have not been considered by the said Original Authority.
6. Interpreting the true meaning and purport behind the amending provisions of Section 35 A (3) ibid the Honble Supreme Court in the case of MIL India Ltd. vs. Commissioner of Central Excise, Noida reported in 2007 (210) ELT 188 (S.C.) have categorically held that the Commissioner (Appeal)s order can be considered as an adjudication / order of assessment; thus, the Commissioner (Appeals) is not empowered under the statute to remand the case back to the original authority. The relevant portion of the said judgment is extracted herein below:-
Further one needs to understand the concept of assessment. An order of assessment under the taxing law does not become final before the adjudicating authority in every matter. It is subject to before the Commissioner (A). The Commissioner (A) can even add or subtract certain items from the order of assessment made by the adjudicating authority and that order of the Commissioner (A) could also be treated as an order of assessment. In complicated cases where costing in involved the adjudicating authority can also refer the matter to an expert. The Act also makes provision for special audit. However, when the principle of law is evolved an appeal lies to the appellate Tribunal under the said Act. In fact, the power of remand by the Commissioner (A) has been taken away by amending Section 35A with effect from 11-5-2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating authority is entitled to move the Tribunal in appeal. Section 35B indicates that the decision of order passed by the Commissioner (A) shall be treated as an order of an adjudicating authority. In the circumstances the High Court had erred in holding that the assessee was not entitled to agitate the question of dutiability in appeal before the Tribunal.
4. In view of the settled position of law, I am of the considered opinion that the impugned order remanding the matter back to the Original Authority is not in conformity with the statutory provisions. Therefore, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for deciding the issue by himself, after affording due opportunity of personal hearing to the appellant. The appeal is allowed by way of remand to the Commissioner (Appeals).
[Dictated and Pronounced in the Open Court] (S.K. MOHANTY) MEMBER (JUDICIAL) Anita ??
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