2017 (7) TMI 848 - AT - Service Tax

Business Auxiliary Service - revisionary power under section 84 of FA - Held that - On perusal of sub-section (4) of section 84, it is clearly stated that no order under the said section shall be passed by the Commissioner in respect of any issue if an appeal against such issue is pending before the Commissioner (Appeals). By letter dated 24.4.2007, the appellants have informed the said fact to the Revisionary Authority. Taking into consideration that the appeal filed by the appellant was pending before the Commissioner (Appeals), the impugned order passed by the revisionary authority confirming the demand of service tax is not sustainable - appeal allowed - decided in favor of appellant.

Issues:
1. Appeal against the order passed by the Commissioner of Service Tax under section 84 of the Finance Act, 1994.
2. Demand of service tax under "Business Auxiliary Service" by the original authority.
3. Revisionary show cause notice issued under section 84 of the Finance Act, 1994.
4. Proceeding with the revisionary show cause notice during the pendency of an appeal before Commissioner (Appeals).
5. Confirmation of the demand of service tax by the revisionary authority.

Analysis:
1. The appeal was filed by the appellant against the order passed by the Commissioner of Service Tax under section 84 of the Finance Act, 1994. The appellants were engaged in providing general sales agency service to international airlines. A show cause notice was issued proposing to demand service tax under "Business Auxiliary Service." The original authority found the appellants liable to pay service tax but set aside the demand due to limitation. An appeal was then made before the Commissioner (Appeals) against this finding.

2. Subsequently, a revisionary show cause notice was served under section 84 of the Finance Act, 1994, despite the pendency of the appeal before the Commissioner (Appeals). The revisionary authority confirmed the demand of service tax, which had been set aside by the original authority on the ground of limitation. The appellant contended that the revisionary authority should not have proceeded with the revisionary proceedings during the pendency of the appeal.

3. The appellant's counsel argued that as per sub-section (4) of section 84, the revisionary authority should not have passed the order confirming the demand of service tax while the appeal was pending before the Commissioner (Appeals). The revisionary authority was informed about the pending appeal, and therefore, the confirmation of the demand by the revisionary authority was deemed unsustainable.

4. Upon hearing both sides and perusing the records, the Tribunal observed that as per sub-section (4) of section 84, no order should be passed by the Commissioner in respect of any issue if an appeal against that issue is pending before the Commissioner (Appeals). The Tribunal noted that the appeal filed by the appellant was indeed pending before the Commissioner (Appeals). Consequently, the impugned order confirming the demand of service tax by the revisionary authority was deemed unsustainable. Therefore, the impugned order was set aside, and the appeal was allowed with any consequential relief.

This detailed analysis of the judgment highlights the issues involved, the arguments presented by both parties, and the legal reasoning behind the Tribunal's decision to set aside the impugned order.

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