2017 (2) TMI 673

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....hri P. K. Choudhary 1. When the matter was called, none appeared on behalf of the respondents despite notice. Since, the appeal is very old, pertaining to the year 2010, it is taken up for hearing with the consent of the appellants. 2. Revenue has filed this appeal against Order-in-Appeal dated 31.03.2010 in terms of which Order-in-Original dated 21.07.2009 was set aside and the case was rem....

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.... away by virtue of amendment to Section 35A of the Central Excise Act, 1944 w.e.f. 11.05.2001. 4. Heard the ld. AR for the appellant Revenue. 5. Section 35A(3) of the Central Excise Act, 1944 as amended w.e.f. 11.05.2001 reads as under: "(3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirm....

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....ch order as he thinks fit and such orders may include an order enhancing the service tax interest or penalty". Thus, it is seen that the language of Section 85(4) is not pari materia with the language of Section 35A(3) of the Central Excise Act, 1944. Infact, Section 85(4) of the Finance Act, 1994 allows/authorizes Commissioner (Appeals) to pass such order he thinks fit and therefore it cannot be ....

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.... Section 85 of the Finance Act, 1994 also. This is so because, sub-section (5) of Section 85 though requires the Commissioner (Appeals) to follow the same procedure and exercise same powers in making orders under Section 85, as he does in the Central Excise Act, 1944 in appeals, this sub-section itself starts with the expression subject to the provisions of this Chapter'. Sub-section (4) of Se....