2015 (4) TMI 1039 - AT - Service Tax

Validity of revision order u/s 84 - Demand of Service tax - penalty under Sections 76, 77 and 78 - Benefit of Section 80 - Jurisdiction of revisional authority - Held that - On the date of issue of show cause notice for revision, the assessee s appeal against the same order-in-original dated 15.02.2007 was pending before the Commissioner (Appeals) and therefore as per Section 84(4) quoted above, the said order-in-original could not have been taken up for passing the revision order. Further, the Commissioner (Appeals) issued the order-in-appeal on 03.04.2008 and consequently the order-in-original dated 15.02.2007 got merged in the said order-in-appeal dated 03.04.2008 and so on the date of issue of the revisionary order dated 23.01.2009, there was no order-in-original in existence which could be thus revised in terms of Section 84 of the Finance Act, 1994. - it is evident that the order of revision has been issued without jurisdiction - Decided in favour of assessee.

Summary

Issues: Jurisdiction of Revisionary Authority under Section 84 of the Finance Act, 1994

Analysis:
1. Background: The appeal was filed against an order passed by the Commissioner, Central Excise, Chandigarh under Section 84 of the Finance Act, 1994. The original order confirmed a Service Tax demand but did not impose penalties under Sections 76, 77, and 78, extending the benefit of Section 80 of the Act.

2. Appeals Process: The Additional Commissioner confirmed the demand, and the appeal filed by the assessee was initially dismissed for default. However, the CESTAT later set aside the dismissal and remanded the case back to the Commissioner (Appeals), who eventually allowed the appeal.

3. Revisionary Order: The Commissioner, Central Excise, Chandigarh initiated revision proceedings under Section 84 and imposed penalties under Sections 76, 77, and 78. The show cause notice for revision was issued while the appeal against the original order was pending before the Commissioner (Appeals).

4. Legal Provisions: Section 84(4) of the Finance Act, 1994, prohibits the Commissioner from passing an order under this section if an appeal against the same issue is pending before the Commissioner (Appeals). In this case, the order-in-original could not have been revised as the appeal was pending, and the original order merged into the subsequent order-in-appeal.

5. Decision: The Tribunal found that the revisionary order was issued without jurisdiction as the appeal against the original order was pending, and there was no valid order-in-original to revise at the time of passing the revisionary order. Consequently, the order-in-revision dated 23.01.2009 was set aside, and the appeal was allowed.