2015 (10) TMI 115 - AT - Service Tax

Penalty u/s 75A, 76 and 77 - Revisional jurisdiction u/s 84 - Held that - There was no adjudication order available for exercise of revisional powers under Section 84 of the Act. Though the revision was proposed as against non-imposition of penalty in the primary adjudication order, which is an aspect distinct from the issues on which the assessee had preferred an appeal before the appellate Commissioner, in view of setting aside of the primary adjudication order by the appellate order dated 26.5.2008, there was no order available for exercising revisional jurisdiction, on or after 26.5.2008. - Imougned order is unsustainable - Decided in favour of assessee.

Summary

Issues:
1. Lack of representation by the appellant during the hearing.
2. Appeal against the Order-in-Revision dated 6.10.2009.
3. Revisional powers of the Commissioner under Section 84 of the Finance Act, 1994.
4. Review of the primary adjudication order dated 23.10.2007.
5. Setting aside of the adjudication order by the appellate order dated 26.5.2008.
6. Exercise of revisional powers in the absence of an available adjudication order.
7. Unsustainability of the impugned order dated 6.10.2009.
8. Reference to a judgment of the Rajasthan High Court in Union of India vs. Inani Carriers 2009 (13) STR 230 (Raj.).

Analysis:

1. The appellant did not have representation during the hearing, and a letter seeking adjournment was filed citing the unavailability of the appellant's Counsel. Despite this, the case was disposed of ex parte after hearing the ld. A.R. for the Respondent/Revenue.

2. The appeal in question was filed against the Order-in-Revision dated 6.10.2009, which was passed by the Commissioner of Central Excise and Service Tax, Allahabad. This order was based on Section 84 of the Finance Act, 1994, which granted revisional powers to the Commissioner against orders passed by subordinate adjudicating authorities.

3. The impugned order reviewed the primary adjudication order dated 23.10.2007, which confirmed a service tax demand along with interest and penalties under relevant sections of the Act. Notably, no penalty under Section 78 was imposed in the primary order.

4. The appellant had previously appealed against the order dated 23.10.2007, and the appeal was allowed by the Commissioner (Appeals) in a subsequent order dated 26.5.2008. This appellate order declared the demand unsustainable, leading to the effacement of the primary adjudication order.

5. Due to the setting aside of the primary adjudication order by the appellate order, there was no order available for the exercise of revisional powers under Section 84 of the Act. The revision proposed against the non-imposition of penalty became irrelevant after the appellate order.

6. Consequently, the impugned order dated 6.10.2009 was deemed unsustainable based on the lack of an available adjudication order for the exercise of revisional jurisdiction. This position was supported by a judgment of the Rajasthan High Court in Union of India vs. Inani Carriers 2009 (13) STR 230 (Raj.).

7. In light of the above analysis, the impugned order was quashed, and no costs were awarded due to the circumstances of the case.