2014 (5) TMI 539 - HC - Service Tax

Maintainability of appeal before Tribunal - Power to review order - Power of the Chief Commissioner to call upon the Committee of Commissioners to take a second look to review - In the second Review there was a difference of opinion between the Commissioners. Thereafter the Chief Commissioner decided to file an appeal before the Tribunal on 13-8-2008. Accordingly, the appeal was filed on 20-8-2008. There was a delay of 78 days in preferring the appeal. - Denial of rebate claim - Tribunal allowed claim by way of remand - Commissioner allowed rebate claim - Held that - It is settled law that the power of review cannot be implied. It is the power which should be expressly provided under the Statute. Merely because there is no prohibition under the Act for any authority to exercise the power of review, the authority would not get jurisdiction to review its own orders. It is only if such an express power is conferred under the Statute on the authority it can review its order. If no such power is conferred there is no power of review. In that view of the matter, once the Committee of Commissioners on a careful examination of the order of the Commissioner of Appeals did not differ in their opinion and decide to accept the said order the matter ends there. The Chief Commissioner is not vested with any power to call upon the Committee of Commissioners to take a second look to review the order so that he could take decision to prefer an appeal. Such a procedure is not contemplated under law. In the nature of proceedings such a power cannot be conferred on the Chief Commissioner also - the Tribunal was justified in holding that the appeal filed on the basis of the second review is not maintainable - Decided against Revenue.

Summary

Issues:
1. Second Review possibility and validity of appeal against Tribunal's order.

Analysis:
1. The case involved the Revenue challenging the Tribunal's order that a second Review is not possible, upholding the Commissioner's decision. The assessee claimed a refund under a government notification, and after a series of appeals and orders, the Commissioner found the assessee eligible for rebate. However, the Chief Commissioner felt the need for a second Review, leading to a difference of opinion among Commissioners. The Tribunal, citing precedent, held that once a Review Committee decides not to appeal, they become functus officio, and there is no provision to reopen their decision. The Tribunal dismissed the appeal, leading the Revenue to challenge this decision.

2. The Revenue argued that there is no legal prohibition on Review Committee members reviewing their earlier decision, especially in cases of differences of opinion. They contended that the Chief Commissioner has the authority to decide on appeals in such scenarios, making the appeal valid. On the other hand, the assessee's counsel argued that without explicit provisions for a second Review, the decision to appeal again lacks legal authority. They supported the Tribunal's decision and stated that interference is unwarranted. The discussion delved into the relevant legal provisions under Section 86, emphasizing the role of the Committee of Commissioners in objecting to orders and directing appeals, highlighting the need for unanimity or differences of opinion for such actions.

3. The judgment analyzed the statutory framework to determine the validity of a second Review and subsequent appeal. It clarified that the Chief Commissioner's role is not mechanical but requires independent decision-making based on the Committee's objections. The absence of a statutory provision for reviewing decisions implied that such power cannot be exercised. The judgment emphasized that once the Committee accepts an order, the matter concludes, and the Chief Commissioner cannot instigate a second Review for an appeal. Ultimately, the Tribunal's decision was upheld, dismissing the Revenue's appeal and favoring the assessee. The judgment concluded that the appeal based on the second Review lacked legal standing, affirming the Tribunal's decision.

This comprehensive analysis covers the issues surrounding the second Review's possibility and the validity of the appeal, providing a detailed examination of the legal framework and the court's reasoning in the judgment.