Remand power under service tax appeal provisions upheld as Commissioner (Appeals) may pass appropriate orders in suitable cases.

Section 85(4) of the Finance Act, 1994 was treated as conferring a wider appellate power on the Commissioner (Appeals) to pass such orders as he thinks fit, including remand in appropriate cases. Section 85(5) was read as procedural and not as cutting down that substantive power. The Tribunal distinguished the narrower remand limitations under Section 35A of the Central Excise Act, 1944 and held that those restrictions do not govern service tax appeals under Section 85. The remand power was therefore affirmed.

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Issues: Whether the Commissioner (Appeals) had power under Section 85 of the Finance Act, 1994 to remand the matter to the original adjudicating authority for fresh decision in a service tax appeal.

Analysis: The Tribunal held that the language of Section 85(4) of the Finance Act, 1994 is materially different from Section 35A of the Central Excise Act, 1944. Section 85(4) empowers the Commissioner (Appeals) to pass such orders as he thinks fit, and this wider wording includes the power to remand the matter in appropriate cases. Section 85(5) was treated as governing only procedural aspects and not as curtailing the substantive appellate power under Section 85(4). The Tribunal followed the view that the Central Excise decisions restricting remand power under Section 35A do not apply to service tax appeals under Section 85.

Conclusion: The Commissioner (Appeals) was competent to remand the matter, and the remand order was upheld. The department's appeal was dismissed.

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