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2016 (12) TMI 854 - AT - Service TaxJurisdiction - power of Commissioner - Held that - A reference to Finance (No. 2) Act, 2009 reveals that Section 84 of the Finance Act, 1994 has been substituted w.e.f 19.08.2009. It is a fact that till the date of substitution, Section 84 provided the powers of revision to the Commissioner. It empowered Commissioner to call for the records of any proceeding in which an adjudicating authority subordinate to him has passed a decision or order. The Section further empowers the Commissioner to pass orders in revision after due process of law. However, it is seen that such revision powers had been replaced by the power to review w.e.f. 19.08.2009. The Show Cause Notice has been issued under the erstwhile Section 84 on 23.03.2010. On such date the Commissioner did not enjoy the powers of revision inasmuch as the Section 84 has been replaced on 19.08.2009. Consequently, I find that the Commissioner did not enjoy the powers of revision while issuing the Show Cause Notice and hence the Impugned Order has been passed without Jurisdiction - appeal allowed - decided in favor of appellant.
Issues: Jurisdiction of Commissioner under Section 84 of the Finance Act, 1994 for revision of orders in Service Tax matters
In this case, the appeal was filed against the Order-In-Revision passed by the Commissioner Service Tax, New Delhi, upholding the demand of Service Tax and imposing penalties under Sections 77 and 78 of the Finance Act, 1994. The appellant was engaged in providing services classified under "Business Auxiliary Service" involving stuffing ATM machines with cash. The revenue contended that these services fall under "Business Auxiliary Services" under Section 65(19) of the Finance Act, 1994. The Additional Commissioner confirmed a service tax demand in an order dated 11.06.2008. Subsequently, the Commissioner issued a Show Cause Notice proposing to revise the order to impose penalties under various sections, leading to the Impugned Order. The appeal challenged this order primarily on the ground of jurisdiction. The main contention raised was regarding the jurisdiction of the Commissioner under Section 84 of the Finance Act, 1994. The appellant argued that at the time of issuing the Show Cause Notice in 2010, the Commissioner did not have the power of revision as per the amendment brought by the Finance (No. 2) Act, 2009. The appellant claimed that the entire proceeding initiated for revision lacked jurisdiction due to this reason. The Departmental Representative, on the other hand, argued that during the period of dispute, the Commissioner had the power of revision under Section 84. It was contended that the Show Cause Notice was issued within the prescribed period of 2 years as mandated by Section 84 before its amendment, making the Commissioner's order valid in terms of jurisdiction. After hearing both sides and examining the records, the Tribunal referred to the Finance (No. 2) Act, 2009, which substituted Section 84 of the Finance Act, 1994, with effect from 19.08.2009. It was noted that until the substitution, Section 84 granted the Commissioner powers of revision. However, these powers were replaced by the power to review from 19.08.2009 onwards. As the Show Cause Notice was issued under the old Section 84 on 23.03.2010, when the Commissioner no longer had revision powers, the Tribunal concluded that the Impugned Order was passed without jurisdiction. Consequently, the Tribunal set aside the Impugned Order and allowed the appeal.
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