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Judgment
Ramesh Nair, Member (J)
In the present appeal the Revenue’s only grievance is that the Commissioner (Appeals) had no power to remand the matter whereas he was supposed to pass the order deciding the appeal finally.
Shri Tara Prakash, learned Deputy Commissioner (AR) appearing on behalf of the Revenue reiterates the grounds of appeal.
None appeared for the respondent-assessee.
We have carefully considered the submission made by learned AR and perused the records. We find that the issue is no longer res-integra as per the judgment of the Hon’ble Jurisdictional High Court of Gujarat in the case of Associated Hotels Limited (Supra) in which the support was taken from the Hon’ble Supreme Court Judgment in the case of Mil India Limited vs. CCE, Noida- 2007 (210) ELT 188 (SC). On this settled position this Tribunal in the case of CCE vs. Adani Power Limited vide Final order No. A/10860 - 10864/2020 dated 18.03.2020 dealing with one of the issue of remand power of the Commissioner (Appeals) held as under:-
“6. As regards the issue that whether Commissioner (Appeals) has power to remand the matter to Adjudicating Authority, we find that this being a case of refund of service tax, clearly covered by the ratio of Hon’ble Gujarat High Court judgment in the case of Associated Hotels Limited (supra). In the said judgment, the Hon’ble High Court has also referred to the judgments of Hon’ble Supreme Court in the case of Mil India Limited vs. CCE, Noida - 2007 (210) ELT 188 (SC). Therefore, we are of the view that the learned Commissioner (Appeals) has power to remand the matter to the Adjudicating Authority, therefore, on this count also, Revenue’s appeal does not sustain.
In view of the above judgment of this Tribunal, the Revenue’s appeals are not sustainable. Hence, we uphold the impugned orders.”
In view of the above decision given by taking support of Hon’ble Gujarat High Court judgment in the case of Associated Hotel Limited (Supra) and Hon’ble Supreme Court Judgment in the case of Mil India Limited (Supra), we are of considered view that the Commissioner (Appeals) has indeed power to remand the matter. Accordingly, there is no error in the impugned order to the extent the matter was remanded to the Adjudicating Authority. Accordingly, the Revenue’s appeal is not maintainable and the same is dismissed.