2011 (6) TMI 566 - AT - Service Tax

Levy of service tax - maintenance and repair service - Revisionary authority proceeded on a different premises for issuing show cause notice asking the appellant to show the reason why its services should not fall under the category of commercial or industrial construction service Held that - When the original jurisdiction was exercised issuing show cause notice on a different premises the revisionary authority had no power to review the show cause notice itself usurping the power of the original authority. Revisionary power is only exercisable when an order causing prejudice to interest of Revenue comes up. Matter arising on the basis of SCN only can be reviewed in revisionary jurisdiction. requirement of pre-deposit waived and appeal allowed

Summary

Issues:
1. Delay in filing the appeal condonation.
2. Service tax demand imposition under Section 84 of the Finance Act, 1994.
3. Revisionary power exercise by the Commissioner.
4. Allegations of erroneous adjudication order.
5. Applicability of commercial or industrial construction service category.
6. Review of order causing prejudice to Revenue's interest.
7. Usurpation of power by the revisionary authority.

Delay Condonation:
The appeal addressed an 8-day delay in filing, which was condoned due to a reasonable explanation provided, leading to the allowance of the miscellaneous application for condonation of delay.

Service Tax Demand Imposition:
The appeal challenged a service tax demand of Rs. 82,251 imposed by the Commissioner under Section 84 of the Finance Act, 1994. The show cause notice questioned the appellant's tax liability under maintenance and repair services. The adjudication order reduced the tax demand to Rs. 2,174 for services provided to M/s. N.F.L. during 2003-04 to 2005-06.

Revisionary Power Exercise:
The Commissioner exercised suo motu revisionary power, deeming the adjudication order prejudicial to Revenue's interest, alleging the taxable service provided fell under commercial or industrial construction services. The revisionary authority's show cause notice differed from the original premises, leading to the appellant's grievance.

Erroneous Adjudication Order:
The appellant contended that multiple services were wrongly categorized under repair and maintenance, with the adjudicating authority's decision reducing the tax demand. The revisionary authority's complete revision on a different premise not in the show cause notice was challenged, seeking rejection of the impugned order.

Commercial or Industrial Construction Service Category:
The dispute arose from the revisionary authority's shift in premises, questioning the appellant's services falling under commercial or industrial construction services, deviating from the original adjudication grounds.

Review of Order Causing Prejudice to Revenue's Interest:
The Tribunal highlighted that Section 84 aimed to review orders prejudicial to Revenue's interest without conferring original jurisdiction. The revisionary authority's exercise of power on different premises, beyond the original authority's scope, was deemed impermissible.

Usurpation of Power by Revisionary Authority:
The Tribunal emphasized that revisionary power could only be exercised when an order causing prejudice to Revenue's interest was at hand. As the revision was based on a show cause notice, the revisionary authority overstepped its jurisdiction, leading to the order's dismissal and appeal allowance without pre-deposit requirements.