TaxTMI 
TaxTMI 
2021 (9) TMI 451
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....ting as follows: "3.1 In the present case, Commissioner (Appeals-I) has remanded the matter to the adjudicating authority to examine the case on merits. Commissioner (Appeals) does not have power to remand the case but is required to decide the matter himself. Section 85 (5) of the Finance Act, 1994, with respect to disposal of appeals by Commissioner (Appeals) reads as below: (5) Subject to the provisions of this chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944). From the reading of the above, it is clear that the powers of Commissioner (Appeals) for disposal of appeals with respect to service tax is same as in Central Excise. Section 35 A (3) reads as follows: Section 35A. Procedure in Appeal - The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed again....
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....s is bad in law, and needs to be set aside. 4.3 Learned Counsel for appellant submits that he has no grievances if the matter is again heard by the Commissioner (Appeals)/ Original Authority, without disturbing the finding recorded by the Commissioner (Appeals) in impugned order on limitation. 5.1 We have considered the impugned order along with the submissions made in appeal and during the argument by both sides. 5.2 Hon'ble Gujarat High Court has in case of Associated Hotels Ltd. [2015 (37) ELT 723 (Guj)], considered the issue in respect of Section 85 (5) of the Finance Act, 1994 and has held as follows: "Revenue has challenged the judgment of the Customs, Excise and Service Tax Appellate Tribunal dated 5-9-2013 raising following question for our consideration: "Whether the Customs, Excise and Services Tax Appellate Tribunal (CESTAT), West Zonal Bench, Ahmedabad is correct in holding that in service tax matters the Commissioner (Appeals) has power to remand the case back to the adjudicating authority for de novo adjudication?" 2. Short question is whether the Commissioner (Appeals) exercising powers under Section 85 of the Finance Act, 19....
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.... of the said Chapter, in hearing the appeals and making orders, the Commissioner shall exercise the same power and follow the same procedure as he exercises and follows in hearing the appeals and passing orders under the Central Excise Act, 1944. 4. In plain terms, sub-section (4) of Section 85 of the Finance Act, 1994 is worded widely and gives ample powers to the Commissioner while hearing and disposing of the appeals to pass such orders as he thinks fit including an order enhancing tax, interest or penalty. Such powers would, therefore, inherently contain the power to remand a proceeding for proper reasons to the adjudicating authority. In absence of any specific bar in this respect, in our opinion, the appellate powers flowing from sub-section (4) of Section 85 would clothe the Commissioner (Appeals) with power to even remand the proceedings. If proper inquiry is not conducted or the proceedings is decided ex parte, it would not be necessary in every case that the Commissioner (Appeals) converts himself to the adjudicating authority and conducts the entire inquiry necessary for proper adjudication of the issues. In such a case, the Commissioner (Appeals) may as w....
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....944 which came to be amended with effect from 11-5-2001. Prior to the amendment, the said provision read as under : "The Commissioner (Appeals) may, after making such further inquiry as may be necessary, 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 with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." 10. After 11-5-2001, the amended Section 35A(3) reads as under : "The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against." 11. On the basis of such changes made in sub-section (3) of Section 35A, counsel would contend that the powers of remand which were previously specifically granted to the Commissioner (Appeals) were taken away. This conscious omission by the Legislature would necessarily mean that after 11-5-2001, the Commissioner (Appeals) would not have power to remand the proceedings in te....
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....t, 1944 must apply in the appeals under 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 Section 85 itself contains the width of the power of the Commissioner (Appeals) in hearing the proceedings of appeal under Section 85. The scope of such powers flowing from sub-section 85(4) therefore cannot be curtailed by any reference to sub-section (5) of Section 85 of the Finance Act, 1994." 5.3 In case of Anand Color Lab [2014 (36) STR 915 (T-Del)], Delhi Bench of CESTAT after considering the decisions referred to in the appeal filed by the revenue has held as follows "4. The Supreme Court in MIL India Ltd. v. CCE, Noida - (2007) 3 SCC 22 = 2007 (210) E.L.T. 188 (S.C.) considered the issue as to existence of the power of remand in the Appellate Commissioner in the context of the provisions of the Central Excise Act, 1944. The Supreme Cour....
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....d's Circular dated 19-1-2010 required those who claimed refunds of the kind involved in these cases, to produce Chartered Accountant's certificate in support of such claim. Again, it is not in dispute that this circular was not in existence when the Orders-in-Original were passed. This is the circumstance in which the matters were remanded by the learned Commissioner (Appeals), oblivious of the fact that he did not have the power of remand. On a perusal of the impugned orders, we find that the substantial issue relating to nexus between input service and output service was remanded by the learned Commissioner (Appeals) to the lower authorities for fresh adjudication in the light of the Board's Circular. Obviously, the learned Commissioner (Appeals) could not have ordered such remand as held by the Tribunal in case of Orient Crafts Ltd. (supra) cited by the learned JCDR. The Hon'ble Supreme Court's decision in the case of MIL India Ltd. (supra) also supports the Revenue. Therefore, the orders of the Commissioner (Appeals) are liable to be set aside. However, the reason found by the learned Commissioner (Appeals) for remand of the cases appears to be valid. We, therefore, are incline....
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....ppellant had paid duty 'under protest' as this fact is mentioned in para 4(a) of the O-I-O. In this regard I refer to Section 11B(1) of CEA 1944. Same is as follows; (emphasis supplied) Claim for refund of duty and SECTION [11B. Interest, if any, paid on such duty] - 1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Centr....