COMMISSIONER OF C. EX. Vs. ORIENT CRAFTS LTD.

JUDGEMENT

(1.) BY consent of both the sides, matter is taken up for final disposal. Heard the DR for the Appellants and Shri Dinesh Mittal, DC -M for the Respondent. Though the impugned order is sought to be challenged on various grounds, it is not necessary to refer to all those grounds and suffice to refer to only one ground namely absence of jurisdiction to the Commissioner (Appeals) to remand the matter. Indeed by the impugned order, the Commissioner (Appeals) has remanded the matter to the Adjudicating Authority to decide about the refund claim, bearing in mind, the observations made by him in his order.

(2.) SECTION 85 of the Finance Act, 1994 deals with the subject of the appeal before the Commissioner (Appeals) in relation to service tax matter. Sub -section (4) thereof provides that the Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of said chapter 5 of the Finance Act, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty, provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.

(3.) IT is settled law that the Commissioner (Appeals) dealing with the appeals under Central Excise Act, 1944 lacks jurisdiction to remand the matter to the Adjudicating Authority. The law provides that in case the Commissioner (Appeals) finds any infirmity in the order passed by the Adjudicating Authority or the order is found to be unsustainable, the Commissioner (Appeals) is certainly entitled to set aside such order and thereupon pass an appropriate order on merits by himself but not to remand the matter. Being so, 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.