2017 (8) TMI 1228 - AT - Service Tax

Jurisdiction - revisionary power of Commissioner (Appeals) - Held that - Section 84 empowers the Commissioner of Central Excise to revise the orders passed by the lower Authorities and for this purpose the section grants a period of two years from the date of the original order - in the present case, the assessee had challenged the order-in-original before Commissioner (Appeals), who in turn passed the order-in-appeal - On the date on which the Commissioner issued SCN initiating proceedings under Section 84, the original order had already got merged with the order of the Commissioner (Appeals). As such, Commissioner did not enjoy the powers for passing an order-in-revision under Section 84 on such date - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Cenvat credit availed by the assessee on various services during 2007-2008.
2. Validity of the order-in-revision passed by the Commissioner under Section 84 of the Finance Act, 1994.
3. Whether the Commissioner had the authority to order revision of the adjudication order after it had merged with the order-in-appeal.

Analysis:
1. The core issue in this case pertains to the Cenvat credit availed by the assessee amounting to ?70,92,084/- on various services during the period 2007-2008. Initially, the Department audited the assessee and instructed them to reverse the Cenvat credit, which was complied with. Subsequently, the assessee realized the correct legal position and filed a refund claim for the wrongly reversed credit. The original Adjudicating Authority denied the refund, but the Commissioner (Appeals) allowed it. The matter was further appealed, leading to a decision by the CESTAT for a de novo consideration.

2. The second issue revolves around the validity of the order-in-revision passed by the Commissioner under Section 84 of the Finance Act, 1994. The Commissioner initiated review proceedings against the adjudication order dated 30-5-2008 and ordered the recovery of the refund paid along with interest. The appeal contests the invocation of Section 84 by the Commissioner.

3. Lastly, the question arises whether the Commissioner had the authority to order the revision of the adjudication order after it had merged with the order-in-appeal. The argument presented was that once the Commissioner (Appeals) passed an order challenging the original adjudication order, the latter ceased to exist. The Tribunal also considered an appeal against the Commissioner (Appeals) order, leading to a de novo decision. Consequently, the original adjudication order had merged with the order-in-appeal, rendering the Commissioner's power to order revision under Section 84 invalid on the date of initiation of proceedings.

In conclusion, the Appellate Tribunal held that the Commissioner had inappropriately exercised the power under Section 84 as the original adjudication order had merged with the order-in-appeal and ceased to exist. Therefore, the impugned order-in-revision was set aside, and the appeal was allowed.