2015 (8) TMI 1136 - AT - Service Tax

Revenue appeal dismissed, Commissioner (Appeals) can remand Service Tax cases. Fair inquiry emphasized.

The Tribunal dismissed the appeal of the Revenue, affirming the Commissioner (Appeals)'s authority to remand proceedings in Service Tax matters under the ... Power of commissioner to remand back the matter - Denial of CENVAT Credit - GTA Service - Held that:- 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. (2007 (3) TMI 8 - SUPREME COURT OF INDIA), 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”. - Decision in the case of Commissioner of Service Tax Vs. Associated Hotels Ltd. [2014 (4) TMI 406 - GUJARAT HIGH COURT ] followed - Decided against Revenue. Issues:1. Validity of remand power of Commissioner (Appeals) in Service Tax matters under Finance Act, 1994.Analysis:The judgment deals with an appeal against an Order-in-Appeal passed by the Commissioner of Central Excise & Customs (Appeals), Nashik. The case involved the respondent, a company availing CENVAT credit, who had availed credit of Service Tax on outward freight and bills issued to their head office without proper details. The Assistant Commissioner disallowed the credit under Section 11A(2) of Central Excise Act, 1944, and imposed penalties. The Commissioner (Appeals) confirmed part of the demand and remanded the case back to the adjudicating authority for verification of documents. The main contention was regarding the power of remand by the Commissioner (Appeals) in Service Tax matters. The appellant-revenue argued that the Commissioner (Appeals) erred in remanding the case, citing a Supreme Court judgment and amendments to the relevant laws.The learned A.R. contended that the power of remand by the Commissioner (Appeals) in Service Tax matters was no longer vested after an amendment in 2001. The appellant argued that the Commissioner (Appeals) cannot remand the matter under the Finance Act, 1994, and cited a Supreme Court judgment to support this claim. The Tribunal heard both sides and considered the arguments presented. The Tribunal dismissed the appeal filed by the Revenue, following a ruling of the Hon'ble High Court of Gujarat in a similar case. The High Court held that the Commissioner (Appeals) does have the power to remand proceedings back to the adjudicating authority under Section 85 of the Finance Act, 1994. The judgment emphasized that the Commissioner (Appeals) can remand the proceedings if proper inquiry is not conducted or if the proceedings are decided ex-parte. The Tribunal clarified that there is no limitation on the Commissioner (Appeals)'s power to remand the case. The Tribunal also distinguished the Supreme Court ruling cited by the appellant, stating that it does not apply to Service Tax matters due to the specific provisions of the Finance Act, 1994.In conclusion, the Tribunal dismissed the appeal of the Revenue, upholding the power of the Commissioner (Appeals) to remand proceedings in Service Tax matters under the Finance Act, 1994. The judgment provides clarity on the Commissioner (Appeals)'s authority to remand cases for proper adjudication, emphasizing the importance of conducting a fair inquiry and allowing for remand if necessary.