2012 (9) TMI 596 - AT - Service Tax

Maintainability of appeal - appeal filed against an order passed by the Commissioner as revisionary authority under Section 84 of the Finance Act, 1994 Held that - Appeal filed against the Commissioner s Review Adjudication Order dated 24.3.2011 is not maintainable under Section 86 of the Act - appellate remedy under Section 86 against such an order was taken away with effect from 19.8.2009 - order passed by the Commissioner of Central Excise under the erstwhile provision of Section 84 on 24.3.2011 on the strength of the aforesaid explanation is not appealable to this Appellate Tribunal under Section 86 as this provision stands from 19.8.2009 - appeal is dismissed as not maintainable.

Summary

Issues:
1. Maintainability of appeal under Section 86 of the Finance Act, 1994 against an order passed by the Commissioner as revisionary authority under Section 84.

Analysis:
The judgment dealt with two applications by the appellant - one for condonation of appeal delay and the other for waiver and stay, arising from an appeal against an order by the Commissioner under Section 84 of the Finance Act, 1994. The Additional Commissioner raised a preliminary objection regarding the maintainability of the appeal under Section 86. The appellant argued that the legislative intent behind the explanation to Section 84 was to allow appeals to the Tribunal against revisionary orders by the Commissioner. However, the Tribunal observed that post-19.8.2009, Section 84 provided for appellate remedy against orders by an Assistant Commissioner, and the revisionary remedy by the Commissioner ceased. The explanation clarified that if an order was passed by a subordinate officer before 19.8.2009, the Commissioner could revise it. Therefore, the Commissioner's order in this case was within jurisdiction, and the remedy available was under Section 86.

The Tribunal analyzed Section 86, which allows appeals against orders by a Commissioner under specific sections but not under Section 84. The appellate remedy against Section 84 orders was removed post-19.8.2009, and no provision extended this remedy to orders passed by the Commissioner under Section 84 before that date. Consequently, the impugned order by the Commissioner on 24.3.2011, based on the explanation to Section 84, was not appealable to the Tribunal under Section 86 post-19.8.2009. Thus, the appeal was deemed not maintainable, leading to the dismissal of the appeal and disposal of the applications for delay condonation and waiver.

In conclusion, the judgment clarified the jurisdictional aspects and the availability of appellate remedies under Sections 84 and 86 of the Finance Act, 1994. It emphasized the legislative changes post-19.8.2009, which altered the appellate landscape concerning orders by the Commissioner, ultimately leading to the dismissal of the appeal due to lack of maintainability under Section 86.