2009 (9) TMI 297 - AT - Service Tax

Penalty- revision order- Whether since impugned order had been passed after expiry of two years from date when order in original was passed, same was not sustainable? Held that- the impugned order has been passed after the expiry of two years from 31-1-2007 when the Order-in-original was passed. Therefore, the impugned order is not sustainable, set aside the same, allow the appeal filed by the party. Stay petition also gets disposed of.

Summary

Issues:
1. Waiver of demand under section 78 of the Finance Act, 1994.
2. Validity of the impugned order-in-revision dated 28-1-2009.
3. Compliance with sub-section (5) of section 84 of the Act.
4. Disposal of the appeal and stay petition.

Waiver of Demand:
The appellants sought waiver of demand of over Rs. 2.2 lakhs, interest, and penalty imposed under section 78 of the Finance Act, 1994. The Tribunal decided to dispose of the appeal without the requirement of pre-deposit of dues adjudged against the appellant.

Validity of Impugned Order:
The impugned order dated 28-1-2009 revised an earlier order passed by the Addl. Commissioner of Central Excise & Customs, Cochin. The appellants argued that the impugned order could not have been passed after the expiry of two years from the date of the original order. The Tribunal found that the impugned order was indeed passed after the statutory deadline, making it unsustainable. Consequently, the Tribunal set aside the impugned order and allowed the appeal filed by the party. The stay petition was also disposed of in light of this decision.

Compliance with Section 84 of the Act:
The Tribunal noted that as per sub-section (5) of section 84 of the Act, no order can be passed under section 84 after the expiry of two years from the date on which the order revised had been passed. The impugned order, passed after the expiration of this statutory limit, was deemed not sustainable, leading to its setting aside by the Tribunal.

Disposal of Appeal and Stay Petition:
After considering the arguments from both sides and the relevant legal provisions, the Tribunal concluded that the impugned order was invalid due to being passed beyond the permissible time limit. As a result, the appeal was allowed, and the stay petition was disposed of accordingly.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT, Bangalore highlights the issues of waiver of demand, validity of the impugned order, compliance with statutory provisions, and the ultimate disposal of the appeal and stay petition.