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PJ/Case Laws/2011-12/1362

Powers of the Commissioner (Appeals)

Case: COMMISSIONER OF SERVICE TAX, KOLKATA v/s P.D. PRASAD & SONS PVT. LTD
 
Citation: 2011 (23) S.T.R. 667 (Tri-Kolkata)
 
Issue:- The Commissioner (Appeal) does not have power to remand matter to the Adjudicating Authority.
 
Brief Facts:- The issue involved was regarding disallowance of cenvat credit. In appeal, the Commissioner (Appeals) remanded the matter to the Adjudicating Authority for taking fresh decision in the issue involved.
 
Revenue is in appeal against the remand order.
 
Appellant’s Contention:- Contention of Revenue is that after the amendment to Section 35A (3) of the Central Excise Act, 1944 whereby the power to remand any matter has been withdrawn. Thus, the Commissioner (Appeals) had no power to remand. They relied upon the case of Commissioner of Central Excise, Jallandhar Vs. B.C.Kataria [2008 (221) E.L.T. 508 (P&H)] and also on the Circular no. 275/34/2006-CX8A, dated 18-2-2010 whereby the Board has clarified in view of the decisions of Hon’ble High Court and the decisions of Hon’ble Supreme court in the case of MIL India Ltd. [2007 (210) E.L.T. 188 (S.C.)] that the commissioner has no power to remand. That the Commissioner (Appeals) continues to exercise the power of Adjudicating Authority in the matter of assessment and the Commissioner (Appeals) can add or subtract certain items from the order passed by the Adjudicating Authority.
 
Reasoning of Judgment:- The Tribunal Held that in view of the amendment to Section 35A (3) of the Central Excise Act, 1944 and decision in the case of Commissioner of Central Excise, Jallandhar Vs. B.C.Kataria and also in Circular no. 275/34/2006-CX8A, dated 18-2-2010 whereby the board has clarified in view of the decisions of High Court and the decisions of the Supreme court in the case of MIL India Ltd that the commissioner has no power to remand.
 
Decision:- Appeal disposed off by way of remand.
 
Comment:- This issue is very important that the Commissioner (Appeal) does not have power to remand the case and it acquires the power of adjudication officer to decide the case. When he acquires the power of adjudication authority then he can make further detailed inquiry and then decide the matter.

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