Custom, Excise & Service Tax Tribunal
Triveni Structurals Ltd vs C.C.E., Allahabad on 26 June, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision: 26.6.2014 Service Tax Appeal No.349 of 2008 Arising out of the order in revision No.ST-53/2007)5 of 2008 dated 31.1.2008 passed by the Commissioner of Central Excise and Service Tax, Allahabad. For approval and signature: Honble Mr. Justice G. Raghuram, President Honble Mr. R.K.Singh, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of 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? Triveni Structurals Ltd. .. Appellants Vs. C.C.E., Allahabad . Respondent
Appearance:
Present Shri S.S. Dabas, Advocate for the appellant Present Shri Govind Dixit, A.R for respondent/Revenue Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. R.K. Singh, Technical Member Final Order No. 52633/2014 Per Justice G. Raghuram:
The appellant is the assessee. The appeal is preferred against the Order in Revision No.ST-53/2007/5 of 2008 dated 31.1.2008 whereby the Commissioner, Central Excise and Service Tax, Allahabad revised the adjudication order dated 22.2.2007 and imposed penalty of Rs.500/- under Section 75A; penalty of Rs.6,16,233/- under Section 76 for violation of Section 68 of the Act; and penalty of Rs.500/- for each default under Section 77 of the Act for failure to file ST -3 returns required under Section 70 of the Finance Act, 1994.
2. The assessee challenges this order inter alia on the ground that the order is in violation of the provision of Section 84 (4) of the Act.
3. The relevant factual scenario may be noticed. During 1997-98 to 2001-02, appellant entered into a contract with the Naval Base, Tirunelveli for providing maintenance and inspection services in respect of VLF Antenna including ground systems. Proceedings were initiated under a show cause notice dated 20.3.2003, alleging non-remittance of service tax for having provided consulting engineer service and for levy of interest and penalties on the proposed quantum of service tax not remitted. Proceedings ended in an adjudication order dated 22.2.2007 and a corrigendum order dated 19.3.2007.The adjudication authority confirmed service tax demand for Rs.6,16,233/- and imposed penalty of an equivalent amount under Section 76; imposed penalties under Section 75A and 77 of the Act without specifying the penalty under each of these provisions. Aggrieved by this order, the appellant preferred an appeal on 25.5.2007 before the appellate Commissioner. By the order dated 29.8.2007, the appellate Commissioner dismissed the appeal. There against the appellant preferred an appeal ST/161/2008 to this Tribunal. Counsel for the appellant and ld. A.R. for Revenue state that this appeal was dismissed for default.
4. After the Commissioner (Appeals) disposed of the appeal preferred by the appellant vide order dated 29.8.2007, a show cause notice dated 13.9.2007 was issued proposing revision of the adjudication order dated 22.2.2007 on the ground that composite penalties under Section 75A, 76 and 77 could not have been imposed; the adjudication order dated 22.2.2007 was thus unsustainable and required to be revised. After due process, the impugned Order-in-Revision dated 30.1.2008 was passed.
5. Ld. Counsel for the appellant contends that qua provisions of Section 84(4) of the Act, the respondent could not have passed the impugned order since the appellant had preferred an appeal on 25.5.2007 to the appellate Commissioner against the adjudication order dated 22.2.2007 and the appellate Commissioner had also disposed of the appeal on 29.8.2007 by dismissing the same.
6. Section 84 spells out contours of the revisionary power of the Commissioner. Sub-section (4) enjoins that no order this under 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 (Appeals).
7. Judgments of the Rajasthan and Punjab & Haryana High Courts in Union of India vs. Inani Carriers 2009 (13) STR 230 (Raj.; C.C.E. vs. Shiva Builders 2011 (22) STR 513 (P & H) are authorities for the proposition that if an issue is pending in appeal, the revisional jurisdiction under Section 84 could not be exercised. Since the appellant had preferred an appeal against the entirety of the adjudication order dated 22.2.2007 which included imposition of penalties thereunder as well and the issue regarding validity of imposition of penalty was equally the subject matter of appellate proceedings pending before the appellate Commissioner since 25.5.2007, the date on which the appeal preferred to that authority had culminated in the order dated 29.8.2007 dismissing the appeal, the initiation of revisional proceedings is unsustainable.
8. On the above factual basis, the revisional proceedings initiated by the show cause notice dated 13.9.2007 and culminating in the impugned order in revision dated 31.1.2008 are in clear transgression of provisions of Section 84(4) of the Act. On this analysis, the impugned order is unsustainable and is quashed. No costs.
9. Appeal is allowed as above.
(Justice G. Raghuram) President (R.K. Singh) Technical Member scd/ 1