Commissioner (Appeals) has no power to remand even in ST cases: CESTAT

the Commissioner (Appeals) remand the case to the original authority in Service Tax cases? Netizens may recall our story reported in case of 2011-TIOL-200-CESTAT-MAD. The Tribunal while dismissing the revenue appeal, held that the Commissioner (Appeals) has the power to remand in service tax cases as the provisions of Section 35A of the Central Excise Act, 1944 are not applicable for appeals relating to Service Tax and Commissioner (Appeals) derives power to decide the appeals from Section 85 of the Finance Act, 1994 which does not preclude the Commissioner (Appeals) from passing a remand order if he thinks fit.

Now, in an identical situation, the Tribunal has allowed the appeal of the revenue by holding that the Commissioner (Appeals) does not have the power to remand even in service tax matters.

The respondent assessee argued that Section 35A (3) is not covered under Section 83 of Finance Act, 1994. The provision of Section 85 (4) of Finance Act, 1994, is different from Section 35A (3) of Central Excise Act, 1994 and hence, Commissioner (Appeals) has power to remand the case.

However, the CESTAT held that:

++ Supreme Court in 2007-TIOL-30-SC-CX held that the power of remand by the Ld. Commissioner (Appeals) has been taken away by amended Section 35A w.e.f . 11-5-2001 under the Finance Act, 1994

++ Tribunal in 2010-TIOL-1892-CESTAT-DEL held that Commissioner (Appeals) dealing with the appeals in relation to the service tax also is not empowered to remand the matter but he has to decide the matter by himself.

++ Thus in case of service tax also the Commissioner (A) is not empowered to remand the matter, he has to decide the matter by himself. Therefore the order of Commissioner (Appeals) remanding the case to the lower authority, is not sustainable. The amendment to Section 35A would apply to the present case.

End result: Since some of the aspects are required to re-examined by the lower adjudicating authority, the Tribunal remanded the matter to the lower adjudicating authority for deciding the issue afresh. Finally revenue has won or lost?