Remanding of case to the original authority by Commissioner Appeals valid on account of genuine reasons.

PJ/Case Laws/2012-13/1486

Case:- COMMISSIONER OF CENTRAL EXCISE, TIRUPATHI Vs M/s OBLIPURAM MINING COMPANY (P) LTD

Citation:- 2013-TIOL-274-CESTAT-BANG

Brief Facts:- The respondent has claimed refund of service tax paid on their inputs services which were claimed to have been used for export of Iron Ore fines, etc. during the material period. The original authority allowed partly refund and rejected balance claim of refund. Aggrieved by the adverse part of the order-in-original, the party had preferred an appeal to the Commissioner (Appeals) and the latter remanded the case to the lower authority for fresh decision in accordance with the principles of natural justice. Theappellate authority found that the original authority had not given any opportunity to the party to present evidence in support of their refund claim. In the present appeal of the department, the sole ground raised against the order of the Commissioner (Appeals) is that the said order was passed without jurisdiction inasmuch as the appellate authority did not have the power of remand.

Appellant’s Contentions:- Appellant has reliedon the Hon’ble Supreme Court’s decision in the case of MIL India Ltd. Vs. Commissioner of Central Excise, Noida [2007 (210) E.L.T. 188 (S.C.)]=(2007-TIOL-30-SC-CX) as also the Tribunal’s decision in the case of Commissioner of Central Excise, Tirunelveli vs. Ramesh Enterprises [2011 (21) S.T.R. 603 (Tri.-Chennai)= (2011-TIOL-200-CESTAT-MAD.). The Appellant has also referred to the provisions of Section 85 of the Finance Act, 1994 in the above context.

Respondent’s Contentions:- Respondent has endeavoured to support the impugned order.

Reasoning of Judgment:-After considering the submissions, Tribunal agree with the appellant that the Commissioner (Appeals) remanded the case to the original authority regardless of the legal position that the Commissioner (Appeals) did not have the power of remand. However, as regards the reasons recorded by the Commissioner (Appeals) for sending the case back to the original authority, we are inclined to agree with the appellate authority. As rightly found by the Commissioner (Appeals), the original authority had not given a reasonable opportunity to the refund-claimant for adducing evidence and other materials in support of the claim for refund. The appellate authority is right in having found that rejection of refund claim without grant of such opportunity to the claimant violated the principles of natural justice. These circumstances have been found by us to be enough for remand of the dispute to the original authority. Accordingly, after setting aside the impugned order, we allow this appeal by way of remand with a request to the original authority to reconsider the respondent's claim for refund and take fresh decision thereon after giving them reasonable opportunity of adducing evidence and being personally heard.

Decision:- Appeal allowed by way of Remand.

Comment:-The analogy drawn from this case is that even though the Commissioner Appeals do not have power to remand the case back to the adjudicating authority but as the order rejecting refund claim was passed without giving sufficient opportunity of hearing to the assessee which was against the principles of natural justice, remanding was justified.

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PJ/Case Laws/2012-13/1486

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