2012 (8) TMI 435 - AT - Service Tax

Tribunal remands case for fresh decision, stresses re-examination by lower authority

The Tribunal allowed the condonation of delay in filing the Appeal and remanded the case to the lower Adjudicating Authority for a fresh decision. It held ... Rejection of refund claim in terms of Notification No.41/2007-ST dated 6.10.2007 - appellants did not submit the requisite documents before the sanctioning authority for examination - on challenge Commissioner (Appeals remanded the matter to the lower authority - Held that:- Considering the amended Section 35A w.e.f. 11-5-2001 under the Finance Act, 1994 Commissioner (Appeals) is not empowered to remand the matter and he has to decide the matter by himself, therefore the order of Commissioner (Appeals) remanding the case to the lower authority, is not sustainable. Thus the Commissioner (Appeals) is certainly entitled to set aside order passed by the Adjudicating Authority and thereupon pass an appropriate order on merits by himself but not to remand the matter. Being so, Commissioner (Appeals) dealing with the appeals in relation to the service tax also is not empowered to remand the matter but he has to decide the matter by himself - remand the matter to the lower adjudicating authority making such further inquiry as may be necessary. Issues:1. Condonation of delay in filing the Appeal.2. Power of remand by the Commissioner (Appeals).3. Interpretation of Section 35A of the Finance Act, 1994.4. Cross Objection regarding Section 35A(3) and Section 85(4) of the Finance Act, 1994.Analysis:1. The Applicant/Appellant Commissioner sought condonation of delay in filing the Appeal, which was allowed after reasons were explained. The Appeal was taken up for disposal after the delay was condoned.2. The Appeal was filed against an Order-in-Appeal remanding the case to the lower Adjudicating Authority. The Revenue contended that the power of remand by the Commissioner (Appeals) had been taken away, citing relevant legal provisions and a Supreme Court decision.3. The Respondent filed a Cross Objection asserting that Section 35A(3) is not covered under Section 83 of the Finance Act, 1994. The argument was made that the provision of Section 85(4) differs from Section 35A(3) of the Central Excise Act, 1994, giving the Commissioner (Appeals) the power to remand the case.4. The Tribunal analyzed the submissions and records, noting the detailed observations made by the Commissioner (Appeals) in the impugned order. The Tribunal referred to relevant Circulars and decisions relied upon by the Appellants to support their case for refund on taxable services used for export of goods. The Tribunal ultimately set aside the Orders-in-Original and remanded the matter to the lower adjudicating authority for a fresh decision.5. The Tribunal discussed the amended Section 35A of the Finance Act, 1994, and referenced a Tribunal decision stating that the Commissioner (Appeals) lacks jurisdiction to remand the matter to the Adjudicating Authority. The Tribunal agreed with the findings of the Commissioner (Appeals) but remanded the matter for re-examination by the lower adjudicating authority, emphasizing that all issues are to be reconsidered with a reasonable opportunity of hearing given to the respondents.This comprehensive analysis covers the issues of condonation of delay, power of remand, interpretation of legal provisions, and the ultimate decision of remanding the case for fresh adjudication.