2018 (4) TMI 1185 - AT - Service Tax

Jurisdiction - Revisional powers - Doctrine of Merger - Held that - if any issue is pending in appeal, the Commissioner (Appeals) cannot exercise the revisional jurisdiction - In the present case, the appeal was filed before the Commissioner (Appeals) and the same was disposed of. Therefore, the O-in-O which was sought to be revised by the Commissioner was not in existence at the time when the SCN was issued. By doctrine of merger the O-in-O dated 15.12.2008 has merged with O-in-A No. 76/2010. The SCN dated 09.08.2010 is therefore against the provisions of law. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Validity of SCN issued invoking revisional powers after disposal of appeal by Commissioner (Appeals).
2. Doctrine of Merger and its application in the present case.
3. Interpretation of Section 84 of the Finance Act, 1994 regarding exercise of revisional jurisdiction.
4. Consequential benefits of setting aside the impugned order.

Analysis:

Issue 1: Validity of SCN issued after disposal of appeal by Commissioner (Appeals)
The appellants argued that the order passed by the Commissioner invoking revisional powers after the disposal of the appeal by the Commissioner (Appeals) is not sustainable. They contended that as per sub-section 4 of Section 84 of the Finance Act, 1994, revisional jurisdiction cannot be exercised if the issue is pending in appeal. The appellants highlighted that the SCN was issued much later after the appeal was disposed of, rendering it invalid and void ab initio. They relied on the decision in the case of CCE vs. Shiva Builders to support their argument.

Issue 2: Doctrine of Merger
The Tribunal discussed the doctrine of merger in the context of the present case. They noted that the Order-in-Original (O-in-O) dated 15.12.2008, which was sought to be revised by the Commissioner, had merged with Order-in-Appeal (O-in-A) No. 76/2010. The Tribunal emphasized that by the doctrine of merger, the O-in-O dated 15.12.2008 was no longer in existence at the time the SCN was issued. This aspect was crucial in determining the validity of the revisional proceedings initiated by the Commissioner.

Issue 3: Interpretation of Section 84 of the Finance Act, 1994
The Tribunal examined the relevant provisions of Section 84 of the Finance Act, 1994 to determine the legality of the revisional jurisdiction exercised by the Commissioner. They highlighted that as per Section 84(4), no order can be passed by the Commissioner if an appeal against the issue is pending before the Commissioner (Appeals). Since the appeal had already been disposed of before the issuance of the SCN, the Tribunal concluded that the revisional proceedings were not in accordance with the law.

Issue 4: Consequential Benefits
After considering the arguments presented and the legal provisions involved, the Tribunal concluded that the demand could not be sustained. They set aside the impugned order and allowed the appeal with consequential benefits, if any. This decision was based on the invalidity of the SCN issued after the disposal of the appeal and the application of the doctrine of merger in the case.

Overall, the Tribunal's analysis focused on the procedural irregularities in invoking revisional powers, the application of legal doctrines such as the doctrine of merger, and the interpretation of relevant statutory provisions to arrive at the decision to set aside the impugned order and allow the appeal.