COMMISSIONER OF SERVICE TAX, KOLKATA Vs. DEVANSH EXPORTS

JUDGEMENT

(1.) HEARD both sides. The appellant filed this appeal against the Order -in -Appeal No. 267/ST/Kol/11, dated 25 -8 -2011, whereby the ld. Commissioner (Appeals) has remanded the case to the lower adjudicating authority.

(2.) BRIEFLY stated the facts of the case are that the respondents filed a refund claim amounting to Rs. 11,92,703/ - and paid on specified services used for export of the goods in terms of Notification No. 41/2007 -S.T., dated 6 -10 -2007. The lower authority has sanctioned an amount of Rs. 33,188/ - out of total refund claim of Rs. 11,92,703/ - and the remaining amount of refund claim was rejected. The respondents challenged the same before the ld. Commissioner (Appeals). The ld. Commissioner (Appeals) vide his order dated 25 -8 -2011, remanded the matter to the lower authority. The revenue challenges the same. Hence the appeal.

(3.) THE contention of the Revenue is that the power of remand by the ld. Commissioner (Appeals) has been taken away. The contention is that Section 85 of the Finance Act, 1994 corresponds to Sections 35 and 35A of Central Excise Act, 1944. The contention is that Section 35A(3) was amended w.e.f. 11 -5 -2001 and sub -section (3) of Section 35(A) of Finance Act, 1994 is reproduced below : Section 35A(3) of Central Excise Act, 1944 - The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against : Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order : Provided further that where the Commissioner (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short -levied or short -paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short -levied or short -paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in Section 11A to show cause against the proposed order. Similar view has been taken by the Honble Supreme Court in the case of Mil India Ltd. v. Commr. of Central Excise, Noida reported in 2007 (210) E.L.T. 188 (S.C.).