COMMISSIONER OF CENTRAL EXCISE Vs. ANAND COLOUR LAB

JUDGEMENT

(1.) THE singular ground on which Revenue challenges the order of the ld. Commissioner (Appeals), Raipur (Chhattisgarh), dated 17 -12 -2008 is that the ld. Appellate Commissioner set aside the adjudication order, dated 31 -3 -2008 passed by the Additional Commissioner, Central Excise, Raipur and remitted the matter for fresh consideration to the primary authority while the Appellate Commissioner has no power to remand the matter. In Para 6 of the impugned order the Appellate Commissioner records that the primary authority's order is "bald" and the lower authority failed to adjudicate the issue presented by dealing with the merits of the case in detail, with reference to the defence submissions and the lower authority neither interpreted Notification No. , dated 20 -6 -2003, dealt with Board's letter F. No. 233/2/2004 -CX -4, dated 7 -4 -2004 nor even adverted to the issue of limitation, pleaded by he assessee. The issue presented in this appeal is with regard to liability of the assessee for rendering photography service, taxable under the provisions of the Finance Act, 1994. Section 85 of the Act sets out the substantive and procedural provisions with regard to appeals to the Appellate Commissioner. Sub -section (4) of this section enjoins the Appellate Commissioner to hear and determine the appeal and, subject to the provisions of this section, pass such orders as he may think fit including an order enhancing the service tax, interest or penalty.

(2.) ON a true and fair construction of these provisions it is clear that since the power to remit a matter for consideration to a primary adjudicating authority is an inherent power of an appellate authority (as pointed out by the Supreme Court in Union of India v. Umesh Dhaimode - : 1998 (98) E.L.T. 584 (S.C.) and in Commissioner of Income Tax, Shillong v. Assam Travels Shipping Service, Dibrugarh - : (1993) 199 ITR 1 (SC); followed by the Delhi High Court in CST, Delhi v. World Vision - : 2011 (24) S.T.R. 650 (Del.)).

(3.) THE language of Section 85 of the Finance Act, 1994 is however not analogous to provisions of the amended Section 35A of the Central Excise Act. Sub -section (4) of Section 85 authorises the Appellate Commissioner to hear and determine an appeal and pass such orders as "he may think fit". The scope of the power conferred on the appellate authority is to pass an order "as he thinks fit". This expression was considered by the Supreme Court in Assam Travels Shipping Service (supra). The Apex Court explained that it is wide enough remand.