2009 (11) TMI 452 - AT - Service Tax

Service Tax Appeal Dismissed: Commissioner (Appeals) Decision Affirmed

The Tribunal dismissed the Revenue's appeal, affirming the Commissioner (Appeals)'s decision to remand the matter in the Service tax case. The Tribunal ... Remand - an appeal filed by the Revenue against order-in-appeal passed the Commissioner (Appeals) by which the Commissioner (Appeals) set aside the order-in-original dated 20-12-07 passed by the Asstt. Commissioner and remanded the matter for de novo adjudication with certain directions. Held that – sections 35, 35A and 35B not made applicable to Service Tax vide section 83. Sub section (4) of Section 85 corresponds to Excise section 35A(3) language of two provisions different. Section 85(5) is only about procedural aspects and not to be interpreted to restrict powers of Commissioner (Appeals) under section 85(4). No infirmity in impugned order remanding matter. Issues:- Applicability of Section 35A(3) of the Central Excise Act, 1944 to Service tax appeals- Commissioner (Appeals) powers to remand the matter in Service tax casesAnalysis:1. Applicability of Section 35A(3) to Service tax appeals:The appeal involved a dispute where the Commissioner (Appeals) remanded the matter to the adjudicating authority for de novo adjudication in a Service tax case. The Revenue contended that the Commissioner (Appeals) lacked the power to remand the matter, citing Section 35A(3) of the Central Excise Act, 1944. The Revenue relied on various judgments, including the Supreme Court's decision in MIL India Ltd. v. CCE, to support their argument that the Commissioner (Appeals) cannot remand matters in such cases.2. Commissioner (Appeals) powers to remand in Service tax cases:The Advocate for the respondent argued that the provisions of Section 35A of the Central Excise Act, 1944 do not directly apply to Service tax appeals. They highlighted the differences in the provisions of Section 85 of the Finance Act, 1994, governing Service tax appeals, and Section 35A. The respondent's counsel emphasized that the Commissioner (Appeals) has the authority to remand matters in Service tax cases, as provided under Section 85(4) of the Finance Act, 1994.3. Judgment and Analysis:The Tribunal analyzed the provisions of Section 35A(3) of the Central Excise Act, 1944 and Section 85(4) of the Finance Act, 1994. It noted the distinction in language between the two provisions, highlighting that Section 85(4) grants broader powers to the Commissioner (Appeals) to pass orders as deemed fit, including remanding matters. The Tribunal concluded that the provisions of Section 85 of the Finance Act, 1994 and Section 35A of the Central Excise Act, 1944 differ, rendering the judgments cited by the Revenue inapplicable to the case. Therefore, the Tribunal dismissed the Revenue's appeal, affirming the Commissioner (Appeals)'s decision to remand the matter in the Service tax case.This comprehensive analysis clarifies the legal issues surrounding the applicability of Section 35A(3) to Service tax appeals and the Commissioner (Appeals)'s powers to remand matters in such cases, providing a detailed examination of the arguments presented by both parties and the Tribunal's judgment.