COMMISSIONER OF SERVICE TAX Vs. WORLD VISION

JUDGEMENT

(1.) THIS is an appeal filed by the Revenue against order -in -appeal No. 61/ST/DLH/2009 dated 8 -7 -09 passed by the Commissioner (Appeals) by which the Commissioner (Appeals) set aside the order -in -original dated 20 -12 -07 passed by the Asstt. Commissioner and remanded the matter for de novo adjudication with certain directions. The Commissioner (Appeals) in the impugned order -in -appeal observed that the order -in -original passed by the Asstt. Commissioner is a non -speaking order which has been passed ex parte in violation of the principles of natural justice. The Asstt. Commissioner was directed to verify the original invoices on which the Cenvat credit has been availed by the appellant during the relevant period under dispute and, thereafter, decide the matter after hearing the respondent. The Revenue's appeal is based on the ground that under the provisions of Section 35A(3) of Central Excise Act, 1944, the Commissioner (Appeals) has no power to remand the matter and in this regard, the Revenue relies upon Hon'ble Supreme Court's order in the case of MIL India Ltd. v. CCE reported in : 2007 (210) E.L.T. 188 (S.C.).

(2.) HEARD both the sides.

(3.) THOUGH by virtue of Section 83 of the Finance Act, 1994, certain provisions of Central Excise Act have been made applicable to Service tax matters, Section 35, 35A and Section 35B are not among such provisions and with regard the appeals against the order passed by various categories of officers, there are independent provisions in the Finance Act, 1994. Section 85 is with regard to the appeals to Commissioner (Appeals) against orders passed by the adjudicating authorities subordinate to the Commissioner of Central Excise and Section 86 is in respect of the appeals to Appellate Tribunal against orders passed by Commissioner of Central Excise or by Commissioner (Appeals). Thus Section 85 of the Finance Act, 1994 corresponds to Sections 35 & 35A of Central Excise Act. Sub -sections 1, 2 and 3 of Section 85 of the Finance Act, 1994 correspond to Section 35 of the Central Excise Act, 1944 and Sub -section (4) of Section 85 corresponds to Finance Act, 1994 correspond to Section 35A(3) of Central Excise Act, 1944. Sub -section (4) of Section 85 of Finance Act, 1994 and Sub -section (3) of Section 35(A) of Finance Act, 1994 are reproduced below: