Cce, Raipur vs M/S C.G. State Civil Supplies ...

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Service Tax Appeal No. 577 of 2009

(Arising out of order-in-appeal No. 30(ST)/RPR-II/2008 dated 25.11.2008 passed by the Commissioner, Customs & Central Excise, Raipur).

CCE, Raipur Appellant

Vs.

M/s C.G. State Civil Supplies Corporation Ltd. Respondent

Appearance:

Sh. Ranjan Khanna, DR for the Revenue

Sh. Manish Gaur, Advocate for the Respondent- assessee

Coram:

Honble Mr. Justice G. Raghuram, President

Honble Mr. R. K. Singh, Member (Technical)

Final Order No. 53295 / 2015

Per: R. K. Singh:

Revenue has filed this appeal against order-in-appeal dated 25.11.2008 in terms of which the order-in-original dated 14.07.2008 was set aside and the case was remitted to the primary adjudicating authority for decision afresh. The order portion of the impugned order-in-appeal is reproduced below:

6. Consequently, I hereby set aside the order impugned and direct the lower authority to take the requisite documents/ certificates on record and re-examine the issues afresh after granting an opportunity to the Appellant to place all such documents/ certificates relating to their claim of 75% abatement. The Appellant shall also be granted an opportunity of personal hearing during the remand proceedings.

2. The only ground in Revenues appeal is that the Commissioner (Appeals) has no power of remand as the said power was taken away by amending Section 35A of the Central Excise Act, 1944 w.e.f. 11.05.2001. Revenue has cited several judgments including judgment of the Apex Court to the effect that the power of remand has been taken away by virtue of amendment to Section 35A of the Central Excise Act, 1944 w.e.f. 11.05.2001.

3. The appellant has contended that while the power of remand has been taken away for the purpose of Central Excise appeals, such power continues to exist in respect of service tax appeals and cited the judgment in the case of Commissioner of Central Excise, Panchkula vs. Goel International Pvt. Ltd.  2015 (39) STR 330 (Tri. Del.).

4. We have considered the contentions of both sides. Section 35A(3) of 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, confirming, modifying or annulling the decision or order appealed against.

Thus, it has been rightly contended by the Revenue that the Commissioner Appeals) had the power only to confirm, modify or annul the decision or order appealed against and did not have the power to remand the case to the primary adjudicating authority as the words or may refer the case back to the adjudicating authority with such direction he may thinks fit for fresh decision or as the case may be after taking additional evidence if necessary which existed in Section 35A(3) prior to 11.05.2001 were deleted w.e.f. 11.05.2001.

But as per Section 85(4) of the Finance Act, 1994 the Commissioner of Central Excise (Appeals) shall hear and determine the appeal and subject to the provisions of this chapter pass such 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 the language of Section 35A(3) of the Central Excise Act, 1944. Indeed, Section 85(4) of the Finance Act, 1994 allows / authorises Commissioner (Appeals) to pass such order he thinks fit and therefore it cannot be argued that as per this Section [85(4)] the Commissioner (Appeals) cannot remand the case if he thinks fit to do so. It is seen that in the case of Goel International (supra) CESTAT has held that language used in Section 85(4) has wider connotation and power to pass such order as he thinks fit includes the power of remand.

5. In the light of the foregoing, we do not find any merit in the appeal and the same is accordingly dismissed.

(Justice G. Raghuram)

President

(R. K. Singh)

Member (Technical)

Pant