2011 (3) TMI 641 - AT - Service Tax

Application of stay - Since, the appellant had filed the present stay petition without filing any appeal against said order of the Assistant Commissioner - As per the provisions of Section 35B of Finance Act, 1994, the order passed by Assistant Commissioner is appealable before Commissioner (Appeals) and not before Tribunal - The reasons advanced by the learned advocate are that since the present impugned order stand passed by Assistant Commissioner in de-novo proceedings and they have already challenged the earlier order of Commissioner (Appeals) before Tribunal, the present stay petition should be considered as being a part of the earlier appeal before Tribunal - Do not find any merit in the above arguments - There is no scope for filing appeal or stay petition before Tribunal against the order of Assistant Commissioner which has been passed in de-novo proceedings and for limited purpose of quantification in terms of remand order of Commissioner (Appeals) - The stay petition is, accordingly, rejected.

Summary

Issues:
1. Jurisdiction of the Tribunal over appeals against orders of Assistant Commissioner passed in de-novo proceedings.
2. Applicability of Section 35B of the Finance Act, 1994 regarding appealable orders.
3. Consideration of stay petitions in relation to orders passed by the Assistant Commissioner.

Analysis:
1. The judgment deals with the jurisdictional issue of challenging orders passed by the Assistant Commissioner in de-novo proceedings before the Tribunal. The impugned order quantified service tax and imposed penalties under Sections 76 and 77 of the Finance Act, 1994. The Tribunal noted that the appeal should have been filed before the Commissioner (Appeals) instead of directly before the Tribunal.

2. The appellant argued that the order by the Assistant Commissioner was passed in de-novo proceedings after a remand by the Commissioner (Appeals). They contended that since they had already challenged the earlier order of the Commissioner (Appeals) before the Tribunal, the present stay petition should be considered part of the earlier appeal. However, the Tribunal held that as per Section 35B of the Finance Act, 1994, orders by the Assistant Commissioner are appealable before the Commissioner (Appeals) and not directly before the Tribunal.

3. The Tribunal emphasized that there is no provision for filing an appeal or stay petition before the Tribunal against orders of the Assistant Commissioner passed in de-novo proceedings. The order of the Assistant Commissioner was found to be detailed, well-reasoned, and in an appealable form, directing the appellant to file an appeal before the Commissioner (Appeals). Consequently, the Tribunal rejected the stay petition, stating that there was no merit in the arguments presented by the appellant.