2014 (7) TMI 976 - AT - Service Tax

Validity of revision order - Violation of provision of Section 84 (4) - Held that - If an issue is pending in appeal, the revisional jurisdiction under Section 84 could not be exercised. Since the appellant had preferred an appeal against the entirety of the adjudication order dated 22.2.2007 which included imposition of penalties thereunder as well and the issue regarding validity of imposition of penalty was equally the subject matter of appellate proceedings pending before the appellate Commissioner since 25.5.2007, the date on which the appeal preferred to that authority had culminated in the order dated 29.8.2007 dismissing the appeal, the initiation of revisional proceedings is unsustainable. - Following decision of Union of India vs. Inani Carriers 2008 (11) TMI 79 - RAJASTHAN HIGH COURT and C.C.E. vs. Shiva Builders 2011 (4) TMI 34 - HIGH COURT OF PUNJAB AND HARYANA - Decided in favour of assessee.

Summary

Issues Involved:
Appeal against revision order imposing penalties under various sections of the Act - Violation of Section 84(4) - Revisional power of the Commissioner - Applicability of revision when appeal is pending.

Analysis:
The judgment pertains to an appeal filed by the assessee against a revision order that imposed penalties under different sections of the Act. The revision order was issued by the Commissioner, Central Excise and Service Tax, Allahabad, revising the adjudication order dated 22.2.2007. The penalties imposed included amounts under Section 75A, Section 76 for violation of Section 68, and Section 77 for failure to file ST-3 returns as required under Section 70 of the Finance Act, 1994.

The assessee challenged the revision order on the ground that it violated the provision of Section 84(4) of the Act. Section 84 outlines the revisionary power of the Commissioner, and subsection (4) specifies that no order shall be passed if an appeal against the issue is pending before the Commissioner of Central Excise (Appeals). The appellant had previously appealed the adjudication order dated 22.2.2007 to the appellate Commissioner, who dismissed the appeal on 29.8.2007.

The judgment references judgments from the Rajasthan and Punjab & Haryana High Courts to support the proposition that if an issue is pending in appeal, the revisional jurisdiction under Section 84 cannot be exercised. Since the appellant's appeal against the adjudication order included the imposition of penalties, and the issue of penalty validity was part of the pending appellate proceedings, the initiation of revisional proceedings was deemed unsustainable.

Based on the analysis, the court found that the revisional proceedings initiated by the show cause notice and the subsequent order were in clear violation of Section 84(4) of the Act. Consequently, the impugned order was deemed unsustainable and quashed, with no costs imposed. The appeal was allowed in favor of the appellant.