Case Law Details
C.S.T.-Service Tax Vs Adani Power Ltd (CESTAT Ahmedabad)
Introduction: In the case of C.S.T.-Service Tax Vs Adani Power Ltd, the issue at hand is whether the Commissioner (Appeals) possesses the authority to remand matters to the Adjudicating Authority. This case revolves around the interpretation of Section 35 A of the Central Excise Act, 1944/Section 128 A (3) of the Customs Act, 1962, post the amendment on 11.05.2001.
Analysis: The core dispute centers on the power of the Commissioner (Appeals) to remand matters. The Revenue argues that, due to the amendment in Section 35 A of the Central Excise Act and Section 128 A (3) of the Customs Act, effective from 11.05.2001, the Commissioner (Appeals) is devoid of the authority to remand matters to the Adjudicating Authority.
On the contrary, Adani Power Ltd, supported by the decision of the Jurisdiction High Court in the case of Associated Hotels Limited and a subsequent CESTAT ruling, contends that the Commissioner (Appeals) does indeed possess the power to remand matters. The Jurisdiction High Court’s reliance on the Hon’ble Supreme Court Judgment in the case of Mil India Limited vs. CCE, Noida further strengthens this argument.
Conclusion: In the case of C.S.T.-Service Tax Vs Adani Power Ltd, the CESTAT Ahmedabad upheld the Commissioner (Appeals)’s authority to remand matters to the Adjudicating Authority. This decision is based on the interpretation of relevant sections of the Central Excise Act and the Customs Act, as well as the support from Jurisdiction High Court and the Hon’ble Supreme Court Judgment. Consequently, the case serves as a precedent that clarifies the Commissioner (Appeals)’s power to remand matters, providing relief to Adani Power Ltd.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
1. The issue involved in the Revenue’s Appeal is that whether the Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority.
2. Shri P.Ganesan, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that per the Section 35 A of Central Excise Act, 1944/ Section 128 A (3) of the Customs Act, 1962 with effect from the 11.05.2001 after amendment in the said section the Commissioner (Appeals) has no power to remand the matter to the Adjudicating Authority. Therefore, he erred in remanding the matter to the Adjudicating Authority.
3. Shri Rahul Patel, Learned Chartered Accountant appearing on behalf of the Respondent submits that the issue is no longer res- integra as held by the Jurisdiction High Court in the case of Associated Hotels Limited- 2015 (37) STR 723 (Guj.) which was followed by this Tribunal in Final Order No. A/10860 -10864/2020 dated 18.03.2020 in the Respondent’s own case that the Commissioner (Appeals) indeed has power to remand the matter to the Adjudicating Authority. Therefore, the Revenue’s appeal is not maintainable.
4. We have carefully considered the submission made by both sides and perused the records. As per the judgment of Hon’ble Jurisdiction High Court of Gujarat in the case of Associated Hotels Limited (Supra) in which the support was taken from the Hon’ble Supreme Court Judgment in the case of Mil India Limited Vs CCE, Noida- 2007 (210) ELT 188 (SC), the issue is settled. This issue has also considered by this Tribunal in the Respondent’s own case vide Final order No. A/10860 -10864/2020 dated 18.03.2020 dealing with one of the issue of remanding power of the Commissioner (Appeals) and held as under :-
“6. As regards the issue that whether Commissioner (Appeals) has power to remand the matter to Adjudicating Authority, we find that this being a case of refund of service tax, clearly covered by the ratio of Hon’ble Gujarat High Court judgment in the case of Associated Hotels Limited (supra). In the said judgment, the Hon’ble High Court has also referred to the judgments of Hon’ble Supreme Court in the case of Mil India Limited vs. CCE, Noida – 2007 (210) ELT 188 (SC). Therefore, we are of the view that the learned Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority, therefore, on this count also, Revenue’s appeal does not sustain.
7. In view of the above judgment of this tribunal, the Revenue’s appeals are not sustainable. Hence, we uphold the impugned orders.
8. Out of the five appeals, one Appeal No. ST/10133/2015 involve amount of Rs. 29,72,447/-. Therefore, this appeal is liable to be dismissed not only on merits but also on monetary limit as per Government’s Litigation Policy issued vide F. No. 390/Misc/1 16/2017- JC dated 22.08.2019.
All the appeals filed by Revenue are dismissed.”
4.1 In view of the above decision given by taking support of Hon’ble Gujarat High Court in the case of Associated Hotel Limited (Supra) and Hon’ble Supreme Court Judgment in the case of Mil India Limited (Supra), the Commissioner (Appeals) indeed has power to remand the matter. Accordingly, there is no error in the impugned order to the extent the matter was remanded to the Adjudicating Authority.
5. Accordingly, the Revenue’s appeal is not maintainable. Hence, the Revenue’s appeal is dismissed.
(Pronounced in the open court on 03.08.2023 )
