2010 (9) TMI 644 - AT - Service Tax

Waiver of pre-deposit - Revisionary orders - The learned DR has not cited any notification issued under Section 4 or 5 of the Customs Act, 1962, to enable the Commissioner of Central Excise and Customs, Trivandrum to exercise revisionary jurisdiction in respect of a matter which falls within the jurisdiction of the Commissioner of Central Excise and Customs, Cochin - It is customary for the Commissioners of Central Excise to issue show-cause notices before passing revisionary orders under Section 84 of the Act -Commissioner, however, did not issue any such notice to the appellant - Further note that the very complexion of the penalty imposed on the assessee was changed by the Commissioner when he substituted Section 76 for Section 78 and without notice to the party - Hence, The stay application (1/2005) stands allowed . Other application filed by the appellant cannot be allowed - This is also a stay application, but stay is prayed for against certain ongoing proceedings in relation to a batch of show-cause notices which were issued subsequently to the assessee - This application is, therefore, dismissed.

Summary

Issues:
1. Jurisdictional authority of the Commissioner to revise Deputy Commissioner's order.
2. Scope of valuation of services beyond the show-cause notice.
3. Legality of penalty under Section 76 introduced by corrigendum.
4. Absence of show-cause notice under Section 84 for revising Deputy Commissioner's decision.

Analysis:

Issue 1: Jurisdictional Authority of the Commissioner
The appellant challenged the jurisdiction of the Commissioner to revise the Deputy Commissioner's order. The Commissioner, without issuing a show-cause notice under Section 84 of the Act, revised the decision. The Tribunal noted the absence of customary show-cause notices issued by Commissioners before passing revisionary orders. The Tribunal found the Commissioner's actions to be irregular and lacking proper legal foundation, leading to the grant of relief for stay in favor of the appellant.

Issue 2: Scope of Valuation Beyond Show-Cause Notice
The appellant contended that the order passed by the Commissioner exceeded the scope of the show-cause notice by including 'storage and warehousing services' within the valuation. This extension of valuation beyond the original notice was deemed inappropriate. The Tribunal acknowledged this discrepancy and considered it as a factor contributing to the irregularity of the Commissioner's actions.

Issue 3: Legality of Penalty Under Section 76
The penalty imposed under Section 76 of the Act was introduced through a corrigendum, which the appellant argued to be unsustainable in law. The Commissioner's substitution of 'Section 78' with 'Section 76' without notifying the party was considered a procedural flaw. The Tribunal highlighted this unauthorized amendment as a legal infirmity in the proceedings, further supporting the appellant's case.

Issue 4: Absence of Show-Cause Notice Under Section 84
The Tribunal emphasized the significance of a show-cause notice under Section 84 of the Act for revising the Deputy Commissioner's decision. The failure to issue such a notice was seen as a procedural lapse, contributing to the irregularities in the proceedings. This omission was a crucial factor in the Tribunal's decision to grant the relief of stay to the appellant.

In conclusion, the Tribunal found multiple irregularities in the Commissioner's actions, including the lack of jurisdiction, extension of valuation beyond the show-cause notice, unauthorized amendment of penalties, and absence of a required show-cause notice. These legal deficiencies led the Tribunal to grant the stay relief to the appellant while dismissing the other application related to ongoing proceedings.