Cce & Customs Nashik vs Shri Sai Rail Services
- CitationAPPEAL NO. ST/161/10 Mum
Ratio decidendi
The rule this decision rests on
The first appellate authority's power to remand a matter to the adjudicating authority is curtailed by statute, and a remand that is not authorised by statute cannot stand as such; however, where the records show that the entire exercise of recalculating the liability must be undertaken afresh by the adjudicating authority, the Tribunal may itself set aside the appellate order and remand the matter for fresh consideration, to be decided after following the principles of natural justice and without being bound by the observations of the first appellate authority.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
APPEAL NO. ST/161/10 Mum
Arising out of Order-in-Appeal No. AKP/47/NSK/2010 dated 10.02.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik.
For approval and signature:
Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
CCE & Customs Nashik : Appellant
Versus
Shri Sai Rail Services
Respondent
Appearance
Shri S.V. Naik, Asst. Commissioner (A.R.) for appellant None For Respondent
CORAM:
Shri. M.V. Ravindran, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical)
Date of Hearing : 10.02.2015 Date of Decision : 10.02.2015
ORDER NO.
Per : M.V. Ravindran This appeal is filed by the Revenue against Order-in-Appeal No. AKP/47/NSK/2010 dated 10.02.2010.
2. None appeared on behalf of the respondents. Heard learned D.R.
3. On perusal of the records, we find that the appeal could be disposed of even in the absence of any representation from the respondent; accordingly we take up the appeal for disposal.
4. The only issue which has been raised by the Revenue in this appeal and as submitted by the learned D.R. is that the first appellate authority has remanded the matter back to the adjudicating authority which is not empowered to do so.
5. On perusal of the records, we find that the first appellate authority has recorded a finding that the respondents service to get classified under Maintenance or Repair Services further verification of the documents is required for recalculation of service tax payable. In our considered view, on perusal of the records available, we do agree with the first appellate authority that the entire exercise needs to be undertaken by the adjudicating authority. Accordingly, we find that though the powers of learned first appellate authority are curtailed by statute in the matter of remanding back to the adjudicating authority, in our view this matter requires reconsideration by the adjudicating authority. Accordingly, the impugned order of the first appellate authority is set aside and the matter is remanded back to the adjudicating authority for reconsideration of the issue afresh after following the principles of natural justice and untrammeled by the observations made by the first appellate authority.
6. Appeal is disposed of by way of remand.
(Dictated in open Court)
(P.R. Chandrasekharan) Member (Technical)
(M.V. Ravindran) Member (Judicial) nsk
??
??
??
??
3
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free