By Puloma Dalal, Jayesh Gogri Chartered Accountants
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The assessee filed refund claim under Notification No. 41/2007-S.T. in relation to CHA service and commission agent service — Rejection of claim held as not correct in impugned order while holding claim to be sanctioned after verification — CCE (Appeals) not having power to remand — Impugned order not sustainable — Matter remanded to CCE (Appeals) for fresh decision.
Facts:
The original authority rejected the refund claim of the assessee in relation to CHA as well as commission agency. The Commissioner (Appeals) held that rejection of refund claim in relation to CHA and commission agent was not correct and the claim was required to be sanctioned after necessary verification and accordingly remanded the case back. The Revenue was in appeal against the order of the Commissioner (Appeals) on the ground that the Commissioner (Appeals) did not have power to remand.
Held:
It was observed that the law on the point of jurisdiction of the Commissioner (Appeals) on the subject of remand is well settled and it has been held that the Commissioner (Appeals) has no power to remand the matter and he has to decide the matter himself in case of any infirmity in the order passed by the adjudicating authority. It was held that the Commissioner (Appeals) having found that the findings on two issues by original authority were not sustainable, it was necessary for the Commissioner (Appeals) to analyse the materials on record and to arrive at appropriate finding on the claim of the assessee and not to leave the matter for verification by the adjudicating authority. Hence the order passed by the Commissioner (Appeals) was set aside and matter was remanded to the Commissioner (Appeals).
