Custom, Excise & Service Tax Tribunal
M/S Bharti Airtel Limited vs Cce, Indore on 28 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. IV
Service Tax Appeal No. 07 of 2010
(Arising out of order-in-appeal No. IND-I/212/2009 dated 30.09.2009 passed by the Commissioner (Appeals)-I Customs & Central Excise, Indore)
DATE OF HEARING : 28.07.2016
DATE OF DECISION : 28.07.2016
FOR APPROVAL AND SIGNATURE :
HONBLE SMT. ARCHANA WADHWA, MEMBER (JUDICIAL)
HONBLE SHRI V. PADMANABHAN, 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 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?
M/s Bharti Airtel Limited . Appellant
(Rep by Sh. Rachit Jain, Adv.)
VERSUS
CCE, Indore . Respondent
(Rep. by Sh. Ranjan Khanna, DR) CORAM : HONBLE SMT. ARCHANA WADHWA, MEMBER (TECHNICAL) HONBLE SHRI V. PADMANABHAN, MEMBER (TECHNICAL) ORDER NO. 52867/2016 PER ARCHANA WADHWA, MEMBER (JUDICIAL) :
After hearing both sides, we find that the Appellant is engaged in providing telecom services and is duly registered with the Service Tax Department. They find a refund claim on 29.06.2007 seeking refund of service tax of Rs. 3,48,837/- paid by them during the period 19.04.2006 to 20.06.2006 on the ground that the same was inadvertently paid by them on international-in-bound roaming services, which were retrospectively exempted vide Notification No. 36/2007-ST dated 15.06.2007.
2. The said refund claim was taken up for adjudication by the Assistant Commissioner, who vide his order dated 28.01.2009 sanctioned the same in terms of the provisions of Section 11-B of the Central Excise Act, 1944 as made applicable to the service tax vide Section 83 of the Finance Act, 1994.
3. The said order of the Assistant Commissioner was reviewed by the Commissioner vide his order dated 05.03.2009 and by exercising the powers in terms of Section 35-E(2) of the Central Excise Act, 1944 directed the Assistant Commissioner to file an appeal before the Commissioner of Central Excise (Appeals). In terms of the said review order of the Commissioner, an appeal was filed before the Commissioner (Appeals), who vide his order dated 24.09.2009 set aside the order of the original adjudicating authority and allowed the appeal filed by the Revenue. Hence the present appeal by the assessee.
4. The preliminary objection raised by the learned advocate is that, during the relevant period, there was no power with the Commissioner to direct the lower authority to file an appeal before the Commissioner (Appeals) by drawing our attention to the provisions of Section 84 of the Finance Act, 1994, as they were on the Statute book. During the relevant period, the Commissioner could himself call for the records of the proceedings and was empowered to pass an order thereon, as deem fit. The learned advocate submits that the said provisions of Section 84 were replaced subsequently on 19.08.2009 wherein power was given to the Commissioner to examine the order of the adjudicating authority and to direct him to apply to the Commissioner (Appeals). Inasmuch as, during the relevant period, no power was vested in the Commissioner to direct the lower authorities to file an appeal before the Commissioner (Appeals), the said direction of the Commissioner contained in his order dated 05.03.2009 is without jurisdiction. For the above proposition, the learned advocate has relied upon various decisions of the Tribunal.
5. The learned DR appearing for the Revenue leaves the matter for the Bench to decide.
6. After carefully considering the submissions made by both sides, we find that Section 84 of the Finance Act, 1994, during the relevant time, read as under :
84(1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter [in which an adjudicating authority subordinate to him has passed any decision or order] 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. Thereafter, w.e.f. 19.08.2009, the said Section 84(1) was replaced and new Section 84(1) was introduced which is to the following effect :
84(1) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceedings in which an adjudicating authority subordinate to him has passed any decision or order under this Chapter for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any Central Excise Officer subordinate to him to apply to the Commissioner of Central Excise (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order.
7. A reading of the above Sections clearly reveals that prior to 19.08.2009, it was the Commissioner himself who was having the power and jurisdiction to call for the records of proceedings before the adjudicating authority and was empowered to pass an order in respect of the same as he may deem fit. However, w.e.f. 19.08.2009 the provisions were changed and the Commissioner was empowered to examine the order of the adjudicating authority and if he was not satisfied, to direct the said authority to file an appeal before the Commissioner (Appeals). The impugned order of the Assistant Commissioner, in the present proceedings, was passed on 28.01.2009 and the order in review by the Commissioner directing the Assistant Commissioner to file an appeal was passed on 05.03.2009 i.e. well before 19.08.2009. As such, it can be safely held that, during the relevant period, there were no powers or jurisdiction with the Commissioner to direct the Assistant Commissioner to challenge the order passed by him before the Commissioner (Appeals). As such, the appeal filed by the Assistant Commissioner before the Commissioner (Appeals) in terms of the order-in-review dated 05.03.2009 is without jurisdiction and against the clear law laid down in the Act. Consequently, the order-in-original passed by the Commissioner (Appeals) is bad in law, being beyond jurisdiction.
8. We also note, at this stage, that the Commissioner has passed the review order dated 05.03.2009 in exercise of the provisions of sub-section (2) of Section 35-E of the Central Excise Act, 1944. The dispute in the present appeal relates to the refund of the service tax, excess paid by the assessee, and as such the provisions of the Finance Act, 1994 would apply. However, we note that certain provisions of Central Excise Act, 1944 have been adopted for the disputes relating to service tax in terms of the provisions of Section 83 of the Finance Act, 1994. On going through the Section 83 of the Finance Act, 1994, we note that while adopting certain provisions of Central Excise Act, 1944, which stand mentioned in the said Section itself, Section 35-E does not stand adopted. In this view also, we find that the order directing the lower authority to file an appeal before the Commissioner (Appeals) is beyond the scope of Section 83 of the Finance Act, 1994 itself.
9. We also find that the issue stands considered by the various earlier decisions of the Tribunal in the following cases :
(1) Acree Ispat Udyog Ltd. Vs CCE, Delhi-V, Rohtak, 2006 (2) STR 484 (Tri.-Del);
(2) Navin Chemical Enterprises vs CCE, Bhopal, 2002 (141) ELT 776 (Tri.-Del);
(3) Bhandari Foils Pvt. Ltd. Vs CCE, Bhopal, 2002 (144) ELT 131 (Tri.-Del);
(4) S.V. Electricals Ltd. Vs CCE, Bhopal, 2002 (144) ELT 65 (Tri.-Del);
(5) CCE, Shillon vs Advent Multi Services Pvt. Ltd., 2009 (16) STR 300 (Tri.-Kol); and (6) CCE & ST, Siliguri vs Mount Distilleries Ltd., 2009 (14) STR 817 (Tri.-Kol).
In all the above decisions, it stands held that prior to 19.08.2009 the Commissioner could have passed an order himself and there was no power with him to direct his subordinates to file an appeal before the Commissioner (Appeals). Such direction was held to be without authority of law and the order-in-appeal passed by the Commissioner (Appeals) in terms of such unlawful review order was set aside.
10. By following the above decisions and in view of the analysis made by us in the preceding paragraphs, we are of the view that the impugned order of Commissioner (Appeals) is without jurisdiction and the same is accordingly set aside. The appeal is allowed with consequential relief to the assessee.
(Dictated & pronounced in the open court) (ARCHANA WADHWA) MEMBER (JUDICIAL) (V. PADMANABHAN) MEMBER (TECHNICAL) Golay 1