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May 2011

(2011) 21 STR 603 (Tri.-Chennai) — Ramesh Enterprises v. CCE, Tirunelveli.

By Puloma Dalal, Jayesh Gogri Chartered Accountants
Reading Time 1 mins
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Original authority has passed order-in-original without offering opportunity of personal hearing — CCE (Appeals) remanded for fresh adjudication to adjudicating authority.

Facts:
Original authority passed the order-in-original without offering personal hearing opportunity to the assessee. After observing the principle of natural justice, the Commissioner (Appeals) annulled the order and directed the lower authority to adjudicate afresh. The Department filed an appeal against the order of the Commissioner (Appeals) on the ground that the Commissioner (Appeals) had no power to remand.

Held:
Section 35A of the Central Excise Act, 1944 has not been made applicable to service tax matters u/s. 83 of the Finance Act, 1994. Section 85(4) does not preclude the Commissioner (Appeals) from passing a remand order if he thinks fit. Hence held that since the principle of natural justice was not followed and considering the amount of demand, the order of the Commissioner (Appeals) remanding the case was upheld and appeal of the Department was rejected.

Comment:
The above two judgments are contradictory.

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