Custom, Excise & Service Tax Tribunal
M/S Institute Of Chartered Financial ... vs Cce, Jaipur I on 15 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 15/11/2016. DATE OF DECISION: 15/11/2016. Service Tax Appeal No. 958 of 2010 [Arising out of the Revision Order No. 8/2010 (ST) Commissioner dated 06/04/2010 passed by The Commissioner of Central Excise, Jaipur.] For Approval and signature : Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? M/s Institute of Chartered Financial Analysts of India Appellant Versus CCE, Jaipur I Respondent
Appearance Shri Manish Gaur, Advocate for the Appellant.
Shri Sanjay Jain, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 55140/2016 Dated : 15/11/2016 Per. Ashok Jindal :-
The appellant has filed an appeal against the impugned order wherein the Commissioner of Service Tax exercising his power under Section 84 of the Finance Act has passed the impugned order. The facts of the case are that an adjudication order was passed by the Adjudicating Authority on 17/04/2008 by demanding service tax, interest and levying penalty under Section 76 of the Finance Act, 1994. The said order was challenged by the appellant before the learned Commissioner (Appeals) on merits. During the pendency of the appeal before the learned Commissioner (Appeals), the Commissioner of Service Tax exercise his power under Section 84 of Finance Act and review the adjudication order for enhancement of penalty under Section 76 of the Act. The penalty was enhanced. Aggrieved from the said order appellant is before us.
2. The learned Counsel for the appellant submits that the learned Commissioner of Service Tax have no power under Section 84 of the Act to review the order as there is an appeal against the adjudication order is pending before the learned Commissioner (Appeals), therefore, the impugned order is to be set aside. To support his contention he relies on the decision of CCE vs. Shiva Builders reported in 2011 (22) S.T.R. 513 (P&H).
3. On the other hand learned AR opposed the contention of the learned Counsel and submits that as appellant has challenged the adjudication order on merits, but learned Commissioner has exercise his power under that Section 84 for enhancement of penalty which is not an issue before the learned Commissioner (Appeals) to decide. In that circumstances, the impugned order is to be upheld.
4. Heard the parties.
5. On careful consideration of the submissions made by both the sides, the facts are admitted that the adjudication order was challenged before the learned Commissioner (Appeals) by the appellants and the appeal was pending before the learned Commissioner (Appeals). As per Section 84 (4) of the Finance Act, 1994 no order under this Section shall be passed by the Commissioner of Service Tax in respect of any issue if an appeal against such issue is pending before the Commissioner of Service Tax (Appeals). On plain reading of the above said provisions it is clear that if the adjudication order has been challenged before the learned Commissioner (Appeals), the learned Commissioner of Service Tax seized his power to review the adjudication order. As appellant has challenged the leviability of penalty itself, therefore, question of enhancement of penalty does not arise. We further take note of judgment of Honble High Court of Punjab & Haryana in the case of CCE vs. Shiva Builders (supra), the Honble High Court has observed as under :-
2.?The assessee is a builder and is covered by the provisions relating to levy of service tax under the Finance Act, 1994. A Show Cause Notice was issued alleging evasion of service tax and for levy of penalty and thereafter, Order-in- Original dated 13-6-2008 was passed against the assessee. The assessee filed an appeal which was allowed only in respect of the penalty. Simultaneously, suo motu revisional jurisdiction was exercised by the Commissioner under Section 84(1) of the Finance Act, 1994 enhancing the liability of the assessee. The assessee challenged the said order on the ground that exercise of suo motu revisional jurisdiction when an appeal had been filed was barred under Section 84(4) of the Finance Act, 1994. This plea has been upheld by the Tribunal, as follows:-
Heard both sides and perused the records. We are not in agreement with the revenues submission, when we find that revenue did not wait to initiate suo-moto revision proceedings after examination of the appellate order passed by the ld. Commissioner (Appeals). Within two months of passing of the order by the appellate authority on 16-6-2009, while first appellate order was passed on 16-4-2009. Similar such cases are coming before us frequently. It is embarrassing for us to declare exercise of jurisdiction by one Commissioner is bad and by the other good. But in this case we are compelled to declare that the Revisional order was unsustainable following the judgment of the Honble High Court of Rajasthan in the case cited (supra). When we noticed that this case is of similar nature, what that was before the Honble High Court of Rajasthan, where the first appellate order was passed on 13-10-2004 and notice for revision was issued on 12-8-2005, we dispose the appeal of the appellant as allowed, so also dispose the stay application. Order of Rajasthan High Court referred in the order of the Tribunal is Union of India v. Inani Carriers - 2009 (13) S.T.R. 230 (Raj.).
5.?We are unable to accept the submission. Section 84 of the Finance Act, 1994 to the extent relevant is as under :-
(1) The Commissioner of Central Excise may call for records of a proceeding under this chapter which has been taken by the subordinate to him and may make such inquiry or cause such inquiry to be made and subject to the provisions of this chapter, pass such order thereon as he thinks fit.
(2) xx???xx???xx???xx???xx (3) xx???xx???xx???xx???xx (4) No order under this section shall be passed by the Commissioner of Central Excise in respect of any issue if an Appeal against such issue is pending before the Commissioner of Central Excise (Appeal).
(5) No such order under this section shall be passed after the expiry of two years from the date of which the order sought to be revised has been passed. A perusal of above provision shows that if any issue is pending in appeal, the revisional jurisdiction could not be exercised. No doubt in the appeal of the assessee, the issue was only validity of order-in-original, by virtue of Section 35A(3) of the Central Excise Act, 1944, the Commissioner (Appeals) could also go into the question of higher liability of the assessee. The said provision is as under :-
35A. Procedure in appeal.
(3)?The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against;
Provided that an order enhancing any penalty or fine in lieu of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order :
Provided further that where the Commissioner (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short- paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in section 11A to show cause against the proposed order.
6.?In view of above provision, even higher liability of the assessee had to be treated to be in issue before the Commissioner (Appeals). Thus, exercise of revisional jurisdiction under Section 84(4) of the Finance Act, 1994 when appeal had been preferred was not permissible. The view taken by the Tribunal is consistent with above statutory provision.
6. In the light of the above discussion, we hold that the Commissioner of Service Tax ceased to have this power to review the adjudication order under Section 84 of the Finance Act, 1994. Therefore, we do not find any merit in the impugned order the same is set aside. The appeal is allowed with consequential relief, if any.
(Dictated and pronounced in open court.) (Ashok Jindal) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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