2007 (12) TMI 91 - AT - Service Tax

Penalty enhanced by comm. (A) u/s 76 in revision order - once the order of the Assistant Commissioner, which has been revised, no longer existed but had merged with the order of the Commissioner (Appeals), it was not permissible in law for the Commissioner to pass the present order in revision

Summary

Issues:
Demand of service tax and penalty imposition under Sections 77 and 78 of the Finance Act, 1994; Interpretation of provisions of Section 84(4) regarding revision of orders.

Analysis:
The Appellate Tribunal CESTAT, New Delhi, addressed the issue of a demand of service tax and penalty imposition under Sections 77 and 78 of the Finance Act, 1994. The appellants were confirmed to have rendered services of consulting engineers, leading to a demand of Rs.4,73,593/- and a penalty of Rs.1000/- each. The Commissioner (Appeals) upheld the service tax demands and penalties, which were further revised by the Commissioner of Central Excise, enhancing the penalty to Rs.4,43,400/-. The learned counsel for the appellant argued that the order of the Assistant Commissioner, which was revised by the Commissioner, had merged with the order of the Commissioner (Appeals), making it impermissible for the Commissioner to pass the revision order. The Commissioner justified the revision based on the interpretation of Section 84(4), stating that the issue was no longer pending before the Commissioner (Appeals) as it had been decided. However, the Tribunal, citing the case of Inani Carriers Vs. CCE, Jaipur, held that the reviewing authority should have preferred an appeal against the order-in-appeal instead of resorting to review a non-existent order.

In light of the above decision and the principle that an order that has merged with a higher appellate order cannot be revised, the Tribunal set aside the impugned order and allowed the appeal. The Tribunal's decision was based on the legal position that once an order has merged with a higher appellate order, it cannot be subject to revision. The Tribunal's ruling emphasized the importance of following due process in challenging orders and the limitations on revision powers when an order has merged with a higher appellate decision. The case highlights the significance of understanding the legal implications of order merging and the restrictions on revising such merged orders.