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2018 (7) TMI 1116 - AT - Service TaxRevision of orders by the Commissioner - Section 84 of Finance Act - power of Commissioner to review orders passed by the original authority in remand proceedings - Held that - The impugned order passed by the Commissioner of Service Tax by exercising his revision power under Section 84 of the Act is not sustainable in view of the Division Bench decision of the Tribunal in the case of Vardhaman Fabrics Pvt. Ltd. 2017 (8) TMI 1228 - CESTAT NEW DELHI wherein the Division Bench has held that the Commissioner does not have the power under Section 84 of the Finance Act to review the decision of the lower authority if the same is passed in pursuance of the remand order by the Commissioner (Appeals). Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Revision of service tax demand by the Commissioner under Section 84 of the Act. 2. Legality of setting aside the original authority's order in remand proceedings. 3. Interpretation of Section 84 of the Finance Act regarding the Commissioner's power to review orders. 4. Doctrine of merger and its application in the case. 5. Applicability of judicial precedents on similar facts and circumstances. Issue 1: Revision of service tax demand by the Commissioner under Section 84 of the Act: The appeal was against the order demanding service tax under 'Tour Operator Service' and 'Business Auxiliary Service' for a specific period. The Commissioner of Service Tax, exercising revision jurisdiction under Section 84, demanded a revised service tax amount along with interest and penalty. The original authority had confirmed the initial demand, which was challenged by the appellant before the Commissioner (Appeals) and later before CESTAT. The Commissioner's review order was based on the extended period being invocable, leading to the present appeal. Issue 2: Legality of setting aside the original authority's order in remand proceedings: The Commissioner's order setting aside the original authority's decision in remand proceedings was challenged as unsustainable and contrary to judicial precedent and Section 84 of the Act. The appellant argued that once the appeal reached the Tribunal and the original authority issued a fresh order following Tribunal's directions, the Commissioner lacked the power to review the remand order. Citing legal provisions and case laws, the appellant contended that the impugned order was not legal or proper on facts and merit. Issue 3: Interpretation of Section 84 of the Finance Act regarding the Commissioner's power to review orders: The appellant relied on Section 84 of the Finance Act, emphasizing that the Commissioner could not pass an order under Section 84 if an appeal against the same issue was pending before the Commissioner of Central Excise. The argument was centered on the Commissioner's lack of authority to review an order passed by the original authority in remand proceedings after the Tribunal's decision. Legal provisions and case laws were cited to support this interpretation. Issue 4: Doctrine of merger and its application in the case: The doctrine of merger was crucial in determining the Commissioner's power to review orders. The Tribunal's decision in a related case highlighted that once an order had merged with the Commissioner (Appeals) order and the Tribunal had remanded the case for fresh adjudication, the original adjudication order ceased to exist. Therefore, the Commissioner was deemed not to possess the authority to pass a revision order under Section 84 in such circumstances. Issue 5: Applicability of judicial precedents on similar facts and circumstances: The decision in the case of Vardhaman Fabrics Pvt. Ltd. was pivotal in the analysis, where the Tribunal held that the Commissioner could not review a decision of the lower authority if it was made following a remand order by the Commissioner (Appeals). This precedent, along with other relevant case laws, formed the basis for setting aside the impugned order in the present appeal. In conclusion, the Tribunal found the Commissioner's revision order unsustainable, citing the doctrine of merger and legal precedents. The impugned order was set aside, allowing the appellant's appeal.
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