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CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL, MADRAS
VICE PRESIDENT FINAL ORDER NOS. 941-942, MS. JYOTI BALASUNDARAM, 2010
Commissioner of Central Excise, Trichy -Appellant
Versus
Karaikal Chlorates -Respondent
APPEAL NOS. ST/204-205/2010
Decided On : 01-09-2010
Ms. Indira Sisupal,M. Kannan
1. Vide the impugned order, the Commissioner (Appeals) has set aside the adjudication orders passed by the Assistant Commissioner on the ground of violation of the principles of natural justice and remitted the case to the adjudicating authority for fresh decision after granting personal hearing to the assessees.
2. According to the revenue, the Commissioner (Appeals) has no power to remand the case in exercise of his power under section 85 of the Finance Act, 1994 as section 85(5) prescribes that the Commissioner (Appeals) can exercise the same powers and follow same procedure as available to the Commissioner (Appeals) under the Central Excise Act, 1944, and the power of the Commissioner (Appeals) under the Central Excise Act has been taken away by the amendment to section 35A of the Central Excise Act.
3. On the other hand, learned counsel for the assessees submits that section 35A of the Central Excise Act has not been made applicable to Service tax as seen from section 83 of the Finance Act, 1994.
4. I have carefully considered the rival submissions and find merit in the stand of the revenue that since section 85(5) of the Finance Act, 1994 provides that the Commissioner (Appeals) in exercising his power under section 85 shall exercise the same powers as that of Commissioner (Appeals) under the Central Excise Act, even though the provisions of section 35A have not been specifically made applicable under the Finance Act, section 85(5) itself makes it clear that the same powers as are exercised by Commissioner (Appeals) under section 35A shall be exercised by the Commissioner under section 85 of the Finance Act, 1994. Since the Commissioner (Appeals) power of remand has been taken away with the amendment to section 35A of the Central Excise Act, 1944, Commissioner (Appeals) under section 85 also does not have any power of remand. However, since the grievance of contravention of the principles of natural justice still remains, while setting aside the impugned order, I remit the cases for fresh decision to the adjudicating authority after extending a reasonable opportunity to the assessees of being heard in their defence.
5. The appeals are thus allowed by way of remand.
