TaxTMI 
TaxTMI 
2009 (11) TMI 452
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....ns. The Commissioner (Appeals) in the impugned order-in-appeal observed that the order-in-Original passed by the Asstt. Commissioner is a non-speaking order which has been passed exporte in violation of the principles of natural justice. The Asstt. Commissioner was directed to verify the original invoices on which the Cenvat credit has been availed by the appellant during the relevant period under dispute and, thereafter, decide the matter after hearing the respondent. The Revenue's appeal is based on the ground that under the provisions of Section 35A(3) of Central Excise Act, 1944, the Commissioner (Appeals) has no power to remand the matter and in this regard, the Revenue relies upon Hon'ble Supreme Court's order in the case ....
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....ard, he relies upon the Hon'ble Supreme Court's judgment in the case of MIL India Ltd. (supra) wherein it has been held that in view of the explicit provisions of Section 35A(3), the Commissioner (Appeals) has no option to remand the matter. The learned DR also cited the judgment of the Tribunal in the case of CCE, Aurangabad v. Bajaj Auto Ltd. reported in 2009 (236) E.L.T. 179 (Tri.-Mum.) wherein the Tribunal, re lying upon Hon'ble Supreme Court's judgment in the case of MIL India Ltd. (supra), held that after amendment to Section 35A(3), the Commissioner (Appeals) has no power to remand the matter back to adjudicating authority. He also cited the judgment of the Tribunal in the case of Standard Drums & Barrel Mfg. Co. v. C....
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....ner (Appeals) while deciding the appeal in Service tax matters has no powers to remand; and that sub-section (4) of Section 85 corresponds sub-section (3) of Section 35A but from the language of sub-section (4), it' is clear that the Commissioner (appeals) while hearing the appeals, has powers to pass such orders as he thinks fit including an order of enhancing the Service tax, interest or penalty. He also pleaded that the applicability of provisions of Section 35A of the Central Excise Act, 1944 to the Service tax appeals to be decided by the Commissioner (Appeals) is confined only to the procedural matters like passing the order after hearing the penalties, allowing additional grounds of appeal, order to be in writing and communicatio....
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....matters, Sec 35, 35A and Section 35B are not among such provisions and with regard the appeals against the order passed by various categories of officers, there are independent provisions in the Finance Act, 1994. Section 85 is with regard to the appeals to Commissioner (Appeals) .against orders passed by the adjudicating authorities subordinate to the Commissioner of Central Excise and Section 86 is in respect of the appeals to Appellate Tribunal against orders passed by Com missioner of Central Excise or by Commissioner (Appeals). Thus Section 85 of the Finance Act, 1994 corresponds to Sections 35 & 35A of Central Excise Act. Sub-sections 1, 2 and 3 of Section 85 of the Finance Act, 1994 correspond to Section 35 of the Central Excise Act,....
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....the Service tax, interest or penalty. Provided that an order enhancing the Service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement" 5. From comparison of the language of sub-section (3) of Section 35A of Central Excise Act and sub-section (4) of Section 85 of Finance Act, 1994, it is seen that the language of the two provisions is different. While sub-section (3) of Section 35A of Central Excise Act states that Commissioner (Appeals), after making such enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the order appealed against, sub-section (4) of Section 85 states tha....