CESTAT, BANGALORE BENCH
Commissioner of Central Excise, Visakhapatnam
FINAL ORDER NO. 67 OF 2012
STAY ORDER NO. 148 OF 2012
APPLICATION NO. ST/STAY/630/2010
APPEAL NO. ST/1145/ 2010
JANUARY 25, 2012
P.G. Chacko, Judicial Member – This application filed by the Department (appellant) seeks stay of operation of the impugned order wherein the learned Commissioner (Appeals) gathered documentary evidence from the assessee and remanded the case to the lower authority for fresh adjudication. The main ground raised in this appeal of the Department is that the lower appellate authority did not have the power of remand and hence could not have passed the impugned order. Today there is no representation for the respondent despite notice, nor any request of theirs for adjournment. We have examined the records and heard the learned Additional Commissioner (AR). The original authority had, in adjudication of a show-cause notice, confirmed a demand of service tax and education cess against the assessee under the head “Management, Maintenance or Repair service” for the period from July, 2003 to March, 2007. It had also imposed penalty equal to service tax on the assessee under Section 76 of the Finance Act, 1994. Aggrieved by this decision of the original authority, the assessee approached the Commissioner (Appeals) and also produced before him a copy of the relevant agreement executed between them and the service recipient in respect of “Repair and Maintenance of Immovable Property”. The appellate authority deemed it fit to remand the case to the original authority for fresh consideration of the issue, Hence the impugned order.
2. The learned Additional Commissioner (AR) submits that the Commissioner (Appeals) did not have the power of remand and hence could not have passed such an order. In this connection, he has relied on the Supreme Court’s judgment in MIL India Ltd. v. CCE 2007 (210) ELT 188 wherein it was held that Parliament had taken away the power of remand from Commissioner of Central Excise (Appeals) by amending Section 35A of the Central Excise Act w.e.f. 11/05/2001. He further submits that it was not open to the Commissioner (Appeals) to permit production of additional evidence. We have considered these submissions. It appears from the records that the assessee was undertaking repairs and maintenance of both movable and immovable properties during the material period. In respect of immovable property, the service was rendered under an agreement entered into with the service recipient. Apparently, the assessee did not produce this agreement before the original authority. It further appears that the repairs and maintenance of immovable property became taxable only w.e.f. 01/05/2006 and that the assessee opposed demand of service tax on this service for the period prior to the said date. Apparently, the learned Commissioner (Appeals) wanted this contention to be considered by the original authority. Though the Commissioner (Appeals) did not have the power of remand, the reasons noted by him for sending the case back to the original authority certainly merits consideration. In our view, these reasons are valid and therefore de novo adjudication of the case is warranted in this case.
3. While setting aside the impugned order on the main ground stated by the appellant, we remand the case to the original authority for de novo adjudication. That authority shall consider the aforesaid agreement in the context of deciding on the question whether the assessee should be asked to pay service tax on repairs and maintenance of immovable property. Further, the adjudicating authority shall also consider the assessee’s plea against the levy on repairs and maintenance of immovable property for the period prior to 01/05/2006. Needless to say that all ancillary issues should also be reconsidered and a speaking order should be passed after giving the assessee a reasonable opportunity of producing documentary evidence and of being personally heard.
4. The appeal stands allowed by way of remand. The stay application also stands disposed of.