AI Drafter 
TaxTMI 
TaxTMI 
2017 (8) TMI 593
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....propriate relief and directing the petitioner to pay duty and penalty on the revised amount of total tax payable for the relevant assessment year, after re-quantifying the amount for the said year. 3. Admittedly, the petitioner has an effective alternative remedy of appeal before the Customs Excise and Service Tax Appellate Tribunal (for short "CESTAT") as prescribed in the Finance Act, 1994. This remedy is sought to be bypassed by the petitioner by contending that the first respondent has no power to remand the matter to the adjudicating authority, in the light of the amendment to Section 35-A of the Central Excise Act, which was amended by Finance Act 2001 dated 11.05.2001. Therefore, it is submitted that the petitioner would be put to great prejudice, if he has to go before the second respondent- Assessing officer, for a portion of the assessment and agitate the remaining portion of the assessment before the Tribunal. 4. The learned counsel for the petitioner further contended that on facts, the entire tax has been paid, as the amount has been credited through his account after the order passed by the High Court of Kerala in W.P.(C) No.8924 of 2008 filed by M/s.Joy Alukkas....
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....red to the circular issued by the CBEC dated 25.07.2008, i.e., after the decision in MIL India Limited (supra), and submitted that the circular specifically refers to Section 85 of the Finance Act, in more than one place and therefore, the Board having directed the authorities to take note of the decision of the Hon'ble Supreme Court, the first respondent could not have remanded the matter to the second respondent - Assessing officer. Reliance was also placed on the circular dated 18.02.2010, which reiterates the circular dated 25.07.2008. 10. The learned Counsel further submitted that the concept of the under lying principle, as canvassed by the petitioner is well demonstrated if the Court peruses Section 86 (7) of the Finance Act, which states that subject to the provisions of Chapter V of the Finance Act, in hearing the appeals and making orders under Section 86, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act. Thus, on a combined reading of Section 86 (7) of the Finance Act with Section 35 (C) (i) of the Central Excise Act, it is abundantl....
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....e to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).] (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of the such adjudicating authority, relating to service tax, interest or penalty under this Chapter, made before the date on which the Finance Bill, 2012 receives the assent of the President: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from....
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....odifying or annulling the decision or order appealed against: Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Commissioner (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 11A to show cause against the proposed order. (4) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision. (4-A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed. (5) On the disposal of the appeal, the Commiss....
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.... every order passed under this section to the Commissioner of Central Excise and the other party to the appeal. (4) Save as provided in section 35G or (4) section 35L, orders passed by the Appellate Tribunal on appeal shall be final. 18. The argument of the learned counsel for the petitioner is that prior to 2001, Section 35-A(3) specifically provided that the Commissioner (Appeals) may pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority for such directions for a fresh adjudication or decision and those power was taken away when Section 35-A(3) was substituted by Finance Act, dated 11.05.2001 and since Sub-section (5) of 85 of the Finance Act directs the Commissioner of Central Excise (Appeals) to follow the procedures under the Central Excise Act and on the date when the impugned order was passed, the Central Excise Act did not confer the power to remand the matter to the adjudicating authority and therefore, the impugned orders are bad in law. 19. By referring to the decision of the Hon'ble Supreme Court in MIL India Limited (supra), it is submitted that t....