2011 (4) TMI 34 - HC - Service Tax

Power of Revision - Section 84 of the Finance Act, 1994 appeal has filed before Commissioner (Appeals) - Power of commissioner to revise an order Held that - exercise of revisional jurisdiction under Section 84(4) of the Finance Act, 1994 when appeal had been preferred was not permissible.

Summary

Issues:
1. Interpretation of Section 84 of the Finance Act, 1994 regarding the Commissioner's power to pass Order-In-Revision.
2. Validity of exercising suo motu revisional jurisdiction when an appeal is pending.
3. Application of Section 35A(3) of the Central Excise Act, 1944 in determining higher liability of the assessee.

Analysis:
1. The appeal was filed by the revenue under Section 35G of the Central Excise Act, 1944 against an order of the Customs Excise and Service Tax Appellate Tribunal. The substantial question of law raised was whether the Commissioner could pass an Order-In-Revision under Section 84 of the Finance Act, 1994 on an issue different from the one decided in the appeal by the Commissioner (Appeal).

2. The assessee, a builder covered by service tax provisions, faced a Show Cause Notice for alleged evasion of service tax and penalty. The Order-in-Original was passed against the assessee, who then filed an appeal. Simultaneously, the Commissioner exercised suo motu revisional jurisdiction under Section 84(1) of the Finance Act, 1994, enhancing the liability. The Tribunal held that such revisional jurisdiction was not permissible when an appeal had been filed, citing a similar case from the Rajasthan High Court.

3. The revenue argued that the issue before the Commissioner (Appeals) was only the validity of the original order levying service tax, not its enhancement. However, the Court disagreed, citing Section 84(4) of the Finance Act, 1994, which prohibits passing orders if an appeal on the same issue is pending. Additionally, Section 35A(3) of the Central Excise Act allows the Commissioner (Appeals) to consider higher liability, making it an issue before the Commissioner. Therefore, exercising revisional jurisdiction in such a scenario was deemed impermissible.

In conclusion, the Tribunal's decision was upheld, stating that no substantial question of law arose, and the appeal was dismissed.