2015 (11) TMI 1179 - AT - Service Tax

Imposition of penalty - Power of Commissioner to review - Held that - As per Section 84 though Commissioner has power of revision he/she did not have any revision power in respect of an issue, if appeal against such an issue was pending before Commissioner (A) during the relevant period. - revision order of the Commissioner in respect of demand of interest on the service tax and penalties imposed under Section 77 by the lower authority is not sustainable and is hereby declared contravening the provisions of law i.e., the then provisions of Section 84 of the Finance Act, 1994. However, the revision order of the Commissioner in respect of penalty under Section 76 of the Finance Act, 1994 is sustainable as this issue was not challenged by the appellant before Commissioner (A).

Summary

Issues:
1. Validity of revision order passed by Commissioner under Section 84 of the Finance Act, 1994.
2. Applicability of revision powers when an appeal is pending before Commissioner (A).
3. Sustainability of revision order in respect of demand of interest and penalties under Section 77.
4. Sustainability of revision order in respect of penalty under Section 76.

Analysis:
1. The appellant, Malayalam Communication Ltd., appealed against the revision order by the Commissioner of Central Excise and Customs, Thiruvananthapuram, under Section 84 of the Finance Act, 1994. The Commissioner held that no penalty under Section 76 was to be imposed on the appellant, but upheld the demands and penalties from the lower authority's order.

2. The department argued that the Commissioner could issue a revision order even when an appeal was pending before Commissioner (A) under the provisions of Section 84 of the Finance Act. However, the appellant contended that revision proceedings were invalid when an appeal was already pending before Commissioner (A) against the Joint Commissioner's order. Citing a decision from the Hon'ble Punjab and Haryana High Court, the appellant argued against the validity of the revision proceedings.

3. The relevant provisions of Section 84 of the Finance Act, 1994 during the relevant period stated that the Commissioner could not pass an order on an issue if an appeal against that issue was pending before Commissioner (A). The Commissioner's revision order in this case was found unsustainable concerning the demand of interest and penalties under Section 77 imposed by the lower adjudicating authority.

4. The impugned revision order of the Commissioner was deemed unsustainable regarding the demand of interest on service tax and penalties under Section 77. However, the revision order in respect of penalty under Section 76 was held sustainable as this issue was not challenged before Commissioner (A). The appellant's appeal before Commissioner (A) was declared valid, and the Commissioner (A) was granted the authority to decide on the issues under the appeal.

5. The judgment concluded by stating that the revision order of the Commissioner contravened the provisions of law under Section 84 of the Finance Act, 1994. The appellant was given the option to challenge any orders passed by Commissioner (A) before the next appellate forum if they felt aggrieved. The appeal was disposed of accordingly.