2011 (6) TMI 355 - AT - Service Tax

Penalty imposed under Section 77 of Finance Act, 1994 - outdoor catering services - Held that - As decided in Mani Engineering Works Vs. CCE, Salem 2008 (9) TMI 85 - CESTAT, CHENNAI in similar circumstances it was held that order of the Commissioner was premature and accordingly, the order was set aside and the matter was remanded with a direction to take up the adjudication of the issue at the appropriate time as per law. In this case also since both sides do not know the outcome of the appeal filed before the Commissioner (A) and whether the Commissioner (A) had decided the appeal at the time when the revision order was passed, it is a fit case for grant of stay and remand at the stage of stay itself to the original adjudicating authority to take up the adjudication at the appropriate time.

Summary

Issues:
1. Jurisdiction of Commissioner to revise order during pendency of appeal.
2. Applicability of penalty under Section 76 of the Finance Act, 1994.
3. Prematurity of revision order.

Analysis:

Issue 1: Jurisdiction of Commissioner to revise order during pendency of appeal
The Appellant, engaged in outdoor catering services, faced Service Tax demand and penalties under Sections 77 and 78 of the Finance Act, 1994. While an appeal was pending before the Commissioner (A), the Commissioner exercised revision power under Section 84 of the Finance Act, 1994. The Appellant argued that the Commissioner could not revise the order during the appeal, citing a specific prohibition under Section 84. The Appellant also contended that the power of review was eliminated after a certain date, and the revision order exceeded jurisdiction. The Departmental Representative argued that the review could be done within two years of the original order, and since the matter of Section 76 penalty was not part of the appeal before Commissioner (A), the revision was permissible. The Tribunal referred to a similar case and held that the revision was premature as the decision on Service Tax liability was pending, thus remanding the matter for fresh adjudication. Ultimately, the Tribunal granted stay, waived pre-deposit, and remanded the case to the original adjudicating authority for further action.

Issue 2: Applicability of penalty under Section 76 of the Finance Act, 1994
The controversy arose regarding the imposition of penalty under Section 76 of the Finance Act, 1994. The Appellant argued against the imposition of this penalty, emphasizing the procedural irregularity in the Commissioner's revision order during the pendency of the appeal. The Departmental Representative defended the imposition, stating that the issue of Section 76 penalty was not part of the appeal before Commissioner (A). The Tribunal, considering the arguments, found that the premature revision order necessitated remand for proper adjudication, indicating that the decision on Service Tax liability would impact the imposition of penalties under different sections of the Finance Act, 1994.

Issue 3: Prematurity of revision order
The Tribunal, while addressing the prematurity of the revision order, relied on precedent and legal provisions to determine the validity of the Commissioner's actions during the pendency of the appeal. Noting the importance of a final decision on the Service Tax liability before addressing penalties, the Tribunal emphasized the need for proper adjudication and remanded the case to the original adjudicating authority. This decision highlighted the significance of procedural adherence and the impact of pending appeals on subsequent revisions, ensuring a fair and lawful process in tax matters.

This comprehensive analysis of the judgment highlights the intricate legal issues surrounding the jurisdiction of the Commissioner, the imposition of penalties under the Finance Act, 1994, and the necessity for proper adjudication in tax disputes.