Custom, Excise & Service Tax Tribunal
Malayalam Communications Ltd vs Commissioner Of Central Excise, ... on 3 November, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/1129/2011-SM [Arising out of Order-in-Appeal No. 03/2011-ST (Commr.) dated 18/01/2011 passed by the Commissioner of Central Excise and Customs, Thiruvananthapuram.] For approval and signature: HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER 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 should 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 Departmental authorities? MALAYALAM COMMUNICATIONS LTD KAIRALI TOWERS, UNIVERSITY P.O. THIRUVANANTHAPURAM 695 034 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax TRIVANDRUM T.C.NO.26/334(1&2), I.C.E BHAVAN,PRESS CLUB ROAD, TRIVANDRUM - 695001 KERALA Respondent(s)
Appearance:
Mrs. Lekshmi Varma.T.P., Advocate C.K. KARUNAKARAN & ASSOCIATES A-ONE, LA ROCHELLE, VIDYA NAGAR, (OPP.PASSPORT OFFICE) KOCHI - 682020 KERALA For the Appellant Mr. Ajay Saxena, Commissioner (AR) For the Respondent Date of Hearing: 03/11/2015 Date of Decision: 03/11/2015 CORAM:
HON'BLE SHRI ASHOK K ARYA, TECHNICAL MEMBER Final Order No. 22120 / 2015 Per : ASHOK K ARYA Both the sides have been heard in detail.
2. The appellant viz., Malayalam Communication Ltd. has filed this appeal against the revision order passed by Commissioner of Central Excise and Customs, Thiruvananthapuram under the then provisions of Section 84 of the Finance Act, 1994. The Commissioner in this revision order has held that no penalty under Section 76 of the Finance Act, 1994 is to be imposed on the appellant. He also held that the demands and penalties in the lower authoritys order are upheld.
3. Learned AR appearing for the department says that Commissioner can issue a revision order even when the appeal is pending before the Commissioner (A) as per the provisions as existed then under Section 84 of the Finance Act.
4. The learned advocate for the appellant vehemently argues that the revision proceedings are not valid when there was already an appeal pending before the Commissioner (A) against the order of the Joint Commissioner in their case. She mentioned that in respect of the same order, Commissioner started revision proceedings and issued a revision order though this order did not impose any penalty under Section 76. She cited the decision of the Honble Punjab and Haryana High Court in the case of CCE vs. Shiva Builders decided on 6.4.2011 in appeal STA No.51 of 2010 saying that when appeal had been preferred before Commissioner (A) exercise of power under Section 84(4) of Finance Act, 1994 was not valid.
5. It is observed that during the relevant period Section 84 of the Finance Act, 1994 had the revision powers to be exercised by the Commissioner of Central Excise. The relevant provisions of Section 84 of the Finance Act, 1994 as existed then are given below:
(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) (3) ..
(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). 5.1 The provisions of law as quoted above are clear that though Commissioner has power of revision he/she did not have any revision power in respect of an issue, if appeal against such an issue was pending before Commissioner (A) during the relevant period. From the facts on records, it is found that Commissioner in his revision order passed an order in respect of penalty under provisions of Section 76 of the Finance Act, 1994. He also passed the order upholding the demands and penalties which were upheld by the lower adjudicating authority.
5.2 This impugned revision order of Commissioner is certainly not sustainable in respect of the demand of interest and penalty as imposed under Section 77 in his order by original adjudicating authority, who is Joint Commissioner of Central Excise, Customs and Service Tax.
6. Considering the facts of the case, submissions of both the sides, the case law cited by the appellant and above discussion, it is held that the revision order of the Commissioner in respect of demand of interest on the service tax and penalties imposed under Section 77 by the lower authority is not sustainable and is hereby declared contravening the provisions of law i.e., the then provisions of Section 84 of the Finance Act, 1994. However, the revision order of the Commissioner in respect of penalty under Section 76 of the Finance Act, 1994 is sustainable as this issue was not challenged by the appellant before Commissioner (A).
6.1 It is made clear that the appeal filed by the appellant before Commissioner (A) is a valid exercise and Commissioner (A) is free to decide the issue which are before him under the said appeal. It is also hereby made clear that whatever orders are passed by Commissioner (A) in the said appeal, if the appellant feels aggrieved by the orders of the Commissioner (A), they will be free to take up the matter before the next appellate forum, if the law permits it so.
7. The appeal is disposed of in above terms.
(Order pronounced in open court) ASHOK K ARYA TECHNICAL MEMBER rv 5