2024 (10) TMI 1069

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.... set aside the impugned order and remand the matter for de novo adjudication, to the original adjudicating authority to decide the case afresh, preferably within six months from date of receipt of this Order. The appellant are also directed to co-operate with the adjudication proceedings and submit all the necessary documents to ascertain the nature of services and abatement, viz. Agreement/Work Orders/Contracts/invoices/Bank Statement etc. to the adjudicating authority within thirty days of receipt of this Order. The appeal filed by the appellant is disposed of accordingly." 2.1 I have heard Shri Abhinav Mehrotra & Shri Satendra Kumar, Advocates for the Appellant and Ms. Chitra Srivastava, Authorized Representative for the Revenue. 2....

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....rt-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) ...... (4A) .... (5) ....... Section 85 (4) & (5) of the Finance Act, 1994 reads as follows: SECTION 85. Appeals to the Commissioner of Central Excise (Appeals).- (1) .... (2) ..... (3) ...... (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty. Provided that an orde....

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....ce Bill." 3.4 In case of MIL India Ltd [2007 (210) E.L.T. 188 (S.C.)] Hon'ble Supreme Court has observed as follows: "4. .......In fact, the power of remand by the Commissioner (A) has been taken away by amending Section 35A with effect from 11-5-2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (A) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (A) continues to exercise the powers of the adjudicating authority in the matters of assessment. Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating author....

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....ass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against". From the above, it follows that the power of remand was explicitly provided under unamended sub-section (3) of Section 35A prior to 11-5-2001 and the same was taken away by the removal of the expression "or may refer the case back to the adjudicating authority". The Tribunal in the case of Commissioner of Central Excise, Noida v. Orient Crafts Ltd. reported in 2011 (21) S.T.R. 302 (Tri.-Del.), held that : "It is settled law that the Commissioner (Appeals) dealing with the appeals under Central Excise Act, 1944 lacks jurisdiction to remand the matter to the Adjudicating Authority. The law provid....