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2015 (11) TMI 1188 - AT - Service TaxChallenge to stay modification order - construction services - Power of Commissioner (Appeals) to review his own order - Maintainability of appeal - Held that - an appeal against a modification of pre-deposit order would fall under the generality of the appellate jurisdiction and an appeal would lie to the Tribunal. Following the principle laid in M/s.Girnar Transformers Ltd. case 2014 (2) TMI 1132 - CESTAT NEW DELHI , I hold that this appeal filed by Revenue is maintainable. - an application for modification of the order is maintainable. Moreover, the Commissioner (Appeals) while directing to deposit the entire amount, distinguished the judgement laid in Macro Marvel 2008 (9) TMI 80 - CESTAT, CHENNAI and A.S.Sikarwar cases 2012 (11) TMI 1000 - CESTAT, NEW DELHI basing upon this conclusion arrived that there are common facilities. In the application for modification, the respondents have also pointed out yet another judgement rendered in the case of Inderjeet Singh Jadon in 2015 (11) TMI 1143 - CESTAT NEW DELHI . Therefore, by the impugned order, in my opinion, the Commissioner (Appeals) has not exercised power of review, but has merely rectified a mistake apparent from the record, which was within his power as laid in the case of M/s.Girnar Transformers Ltd. - Decided against Revenue.
Issues:
Challenge to modification of stay order by Commissioner (Appeals) - Jurisdiction of Commissioner (Appeals) to review own order - Maintainability of appeal by Revenue - Sustainability of the impugned order. Analysis: 1. The appeal was filed by Revenue challenging the stay modification order passed by Commissioner (Appeals) on 18.2.2015, which granted full waiver of pre-deposit to the respondents, engaged in providing construction services. The Revenue contended that there is no provision in the Finance Act, 1994, allowing the Commissioner (Appeals) to review his own order. The Tribunal analyzed various judgments and principles, including the case of M/s.Girnar Transformer Ltd., concluding that an appeal against a modification of pre-deposit order falls under the appellate jurisdiction, making the appeal filed by Revenue maintainable. 2. The main issue addressed was the sustainability of the impugned order. The Revenue argued that there was no error apparent on the face of the record in the stay order dated 29.10.2013, and by granting full waiver of pre-deposit, the Commissioner (Appeals) exceeded his authority. On the contrary, the respondent argued that the facts stated in the initial stay order were incorrect, leading them to file an application for modification. The respondents detailed how their case differed from previous judgments, highlighting errors in the Commissioner (Appeals)' assessment. The Tribunal noted that if the argument of the respondents regarding the lack of common facilities was accepted, there was an error of fact apparent in the initial stay order. The Tribunal held that the Commissioner (Appeals) had rectified a mistake rather than reviewed his decision, as allowed under the case of M/s.Girnar Transformers Ltd. 3. The Tribunal clarified that the observations made regarding the contentions raised by the respondents were limited to the current order. The Commissioner (Appeals) was directed to decide the appeal expeditiously, preferably within six months from the date of the order. The waiver of pre-deposit granted in the stay-modification order would remain valid until the final disposal of the appeal by the Commissioner (Appeals). The appeal was dismissed, and the cross objections were disposed of accordingly, with the judgment pronounced in open court on 28.10.2015.
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