Custom, Excise & Service Tax Tribunal
Cce, Nashik vs M/S Bhagwati Steel Cast Ltd on 29 September, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/563/11 (Arising out of Order-in-Appeal No. AKP/163/NSK/2011 dated 29.07.2011 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik.) For approval and signature: Honble Shri Anil Choudhary, 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 : Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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CCE, Nashik
: Appellant
Versus
M/s Bhagwati Steel Cast Ltd.
: Respondent
Appearance
Shri B. Kumar Iyer, Supdt. (A.R.)
: For Appellant
Shri Shailesh P. Seth, Advocate
: For Respondent
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 29.09.2014 Date of Decision: 29.09.2014
ORDER NO.......................................................
Per: Anil Choudhary:
The present appeal is against Order-in-Appeal No. AKP/163/NSK/2011 dated 29.07.2011 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik.
2. The brief facts of the case are the assessee i.e. respondent M/s Bhagwati Steel Cast Ltd. holds Central Excise registration certificate for manufacture of goods falling under Chapter 72 of CETA, 1985 and are availing CENVAT credit. During the period from 2006-07 to 2007-08 (up to November, 2007) they have availed credit of Rs. 1,01,659/- in respect of Service Tax paid on outward freight under the category of GTA service and further credit of Service Tax of Rs. 1,05,000/- on the strength of bills which are issued to their head office. The Bills did not have any details such as Service Tax registration number of service provider, serial number, etc. A show-cause notice dated 27.09.2010, was issued to the respondent-assessee demanding total inadmissible credit of Rs. 2,06,659/- (Rs. 1,01,659 + Rs. 1,05,000). The Assistant Commissioner had adjudicated & disallowed the whole amount under the provision of Section 11A(2) of Central Excise Act, 1944 together with interest under Rule 14 of CENVAT Credit Rule, 2004 read with Section 11AB and imposed equal amount of penalty under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. In appeal, the Commissioner (Appeals) vide Order-in-Appeal has confirmed the demand to extent of Rs. 1,05,000/- together with interest and equal amount of penalty and set aside the demand of Rs. 1,01,659/- together with interest and penalty and the case was remanded back to the adjudicating authority to verify the documents and directed him to issue fresh order within three months. Being aggrieved by the impugned order the appellant-Revenue is before this Tribunal.
3. The learned A.R. contends that the learned Commissioner (Appeals) cannot remand the matter in Service Tax under Finance Act, 1994, Commissioner have erred in his observation that power to remand is available under Section 85(4) of Finance Act, 1994 and is not aligned with Section 35A(3) of Central Excise Act, 1944. After amendment w.e.f. 11.05.2001, power of remand was no longer vested with Commissioner (Appeals). Further he contends that departments view relating to power of remand by Commissioner (Appeals) has also been confirmed by an observation of Hon'ble Supreme Court in judgement in the case of M/s MIL India Ltd. Vs. Commissioner of Central Excise, Noida 2007 (210) ELT 188 (SC). At para 4 of the said judgment Hon'ble Supreme Court observed that:-
Infact, the power of remand by the Commissioner (Appeals) has been taken away by amending Section 35A with effect from 11.05.2001, under the Finance Bill, 2001. Under the Notes on 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 (Appeals) to remand matters back to the adjudicating authority for fresh consideration.
4. Heard both sides.
5. Having considered the rival contentions, I dismiss the appeal filed by the Revenue following the ruling of Hon'ble High Court of Gujarat in the case of Commissioner of Service Tax Vs. Associated Hotels Ltd. 2014-TIOL-463-HC-AHM-T-ST, wherein, the short question was whether the Commissioner (Appeals) exercising powers under Section 85 of the Finance Act, 1994 has the power to remand the proceedings back to the adjudicating authority. It was held that the powers flowing from sub-Section (4) of Section 85 clothe, the Commissioner (Appeals) with power to even remand the proceedings. If proper inquiry is not conducted or the proceedings is decided ex-parte, it would not be necessary in every case that the Commissioner (Appeals) converts himself to the adjudicating authority and conducts the entire inquiry necessary for proper adjudication of the issues. In such a case, the Commissioner (Appeals) may as well decide to remand the proceedings, and there is no limitation on his powers to do so. As regards the ruling of Hon'ble Apex Court in MIL India Ltd. (supra), the Hon'ble High Court observed that the Ruling is not applicable to Service Tax matters as sub-Section (5) of Section 85 of Finance Act, 1994 starts with words subject to the provisions of this chapter.
6. Hence, the appeal of Revenue is dismissed.
(Pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 4