Case Law Details
C.S.T. Service Tax Vs Adani Power Ltd (CESTAT Ahmedabad)
As regard the question relating to the power of remand of the Commissioner (Appeals), it has been pleaded that in view of the observations of the Supreme Court in the case of MIL India Ltd. v. Commissioner of Central Excise, reported in 2007 (210) E.L.T. 188, the power of remand by the Commissioner (Appeals) had been taken away by amending the relevant provisions in Section 35(A) of the Central Excise Act,1944 /Section 128A (3) of the Customs Act, 1962 w.e.f. 11-5-2001. Two judgments of Punjab & Haryana High Court in the cases of Commissioner of Customs, Amritsar v. Enkay (India) Rubber Co. Pvt. Ltd., reported in 2008 (224) E.L.T. 393 and Commissioner of Central Excise, Jalandhar v. B.C. Kataria, reported in 2008 (221) E.L.T. 508, were also cited on behalf of the Revenue. On the other hand, the counsel for the respondent relied upon the judgment of CESTAT passed in their own case reported in 2016(44) STR146(T) and theHon’ble Gujrat High Court decision in the matterofCommissioner of Service tax Vs. Associated Hotels Ltd. – 2015 (37)STR723 (Guj) supra. We also observe that the Gujarat High Court in the case of Medico Labs, as reported in 2004 (173) E.L.T. 117,by relying the Supreme Court’s ruling in the case of Union of India v. Umesh Dhaimode, reported in 1998 (98) E.L.T. 584, wherein the jurisdictional High Court has taken the view that the power of remand is still available with the Commissioner (Appeals).
The apparent conflict between the two Supreme Court rulings in the cases of Umesh Dhaimode and MIL had been examined by the Tribunal in several decisions. In the cases of Commissioner of Central Excise v. Prem Steels P Ltd., reported in 2012-TIOL-1317-CESTAT-DEL,Commissioner of Central Excise v. Singh Alloys (P) Ltd., reported in 2012 (284) E.L.T. 97, and Commissioner of Central Excise v. Vikram Dhawan, reported in 2012 (284) E.L.T. 554, held that the observations in MIL India‟s case are in the nature of passing remarks which cannot take proceedings over specific analysis of the relevant provisions and the findings thereon of the Supreme Court in the case of Umesh Dhaimode. The judgment of the Gujarat High Court in the case of Medico Labs was also taken note of and it has been held that the Commissioner (Appeals) still holds the power to remand matters.
In the present case, the observation made by the Commissioner (Appeals) in Para XXII,XXIII, II, XII, XXXVIII mentioned in the part (D) of discussion and finding of impugned OIA cannot be regarded as amounting to a remand. In the present case, the directions given by the Commissioner (Appeals) for re-verifying a few aspects related to refund cannot be considered as amounting to a remand to the lower authority. These directions should have amounted to remand, if any, of the issues in dispute had been left unresolved by the Commissioner (Appeals) and sent back to the lower authority for a fresh decision or adjudication. This has not happened in the present case as all the issues raised by the Lower Authority in the adjudication order have been decided conclusively by the Commissioner (Appeals) as is evident from impugned Order-In-Appeal. In these circumstances, we do not find any merit in the Revenue‟s appeal in this regard.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
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