2016 (8) TMI 499 - AT - Service Tax

Review order direction to Assistant Commissioner to file the appeal before the Commissioner (Appeals) of Central Excise in terms of sub-section (4) of Section 35E of the Central Excise Act, 1944 Held that - 35E of the Central Excise Act, 1944 is not finding a place in Section 83 of the Finance Act, 1984. Thus, order passed by the Jurisdictional Commissioner in terms of Section 35E of the Central Excise Act, in directing the Assistant Commissioner to file the appeal before Commissioner (Appeals) concerning the service tax issue is not in conformity with the statutory mandates. Appeal by the assistant commissioner before Commissioner (Appeals) Held that - Section 84 of the Finance Act, 1994 at the relevant time provides for revision of orders by the Commissioner of Central Excise and nowhere there is any mention about filing of appeal before the Commissioner (Appeals) against the order passed by the officers subordinate to the Commissioner. The said provision of filing appeal was incorporated in Section 85 w.e.f. 19.08.2009. In the present case, since the appeal was preferred by the Assistant Commissioner prior to the date of substitution of the clause in Section 84 of the Act w.e.f. 19.08.2009 for filing the appeal, the appeal filed before the Commissioner (Appeals) is not maintainable . Appeal allowed decided in favor of appellant.

Summary

Issues:
1. Jurisdictional authority directing filing of appeal under Section 35E of the Central Excise Act for a service tax issue.
2. Applicability of provisions of Finance Act, 1994 regarding filing of appeal before Commissioner (Appeals).
3. Maintainability of appeal filed by Assistant Commissioner before Commissioner (Appeals).

Analysis:

Issue 1:
The appeal challenged the order by the Commissioner (Appeals) concerning a service tax demand. The appellant contended that the review order directing the Assistant Commissioner to file the appeal under Section 35E of the Central Excise Act was improper as Section 35E does not apply to service tax issues. The Tribunal noted that Section 83 of the Finance Act, 1994 does not include Section 35E of the Central Excise Act for the purpose of the Finance Act. Therefore, the direction to file the appeal under Section 35E for a service tax matter was deemed not in compliance with statutory requirements.

Issue 2:
The Tribunal examined the provisions of the Finance Act, 1994 regarding the revision of orders by the Commissioner of Central Excise and the filing of appeals before the Commissioner (Appeals). It was observed that at the relevant time, Section 84 of the Finance Act allowed for the revision of orders by the Commissioner of Central Excise, with no provision for filing appeals before the Commissioner (Appeals). The provision for filing appeals before the Commissioner (Appeals) was introduced in Section 85 of the Act from a later date. As the appeal in question was filed by the Assistant Commissioner before the amendment date, the Tribunal concluded that the appeal before the Commissioner (Appeals) was not maintainable.

Issue 3:
Considering the lack of conformity with statutory provisions in the initiation and disposal of the appeal before the Commissioner (Appeals), the Tribunal accepted the appellant's preliminary objection. The Tribunal held that the proceedings for filing and disposing of the appeal were not in accordance with the law. Consequently, the impugned order by the Commissioner (Appeals) was set aside, and the appeal was allowed in favor of the appellant, with any consequential relief to be granted as per the law.

In conclusion, the Tribunal found that the directions to file the appeal under Section 35E of the Central Excise Act for a service tax issue were not legally valid. Additionally, the appeal filed by the Assistant Commissioner before the Commissioner (Appeals) was deemed not maintainable due to the absence of relevant provisions at the time of filing. Therefore, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant.