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TMI Blog2010 (12) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005, department issued show cause notice directing the appellant to show cause as to why the said refund claim filed by them be not rejected. The appellant resisted the show cause notice and filed a detailed reply. The Adjudicating Authority vide Order-in-Original No. 192/2006-07 adjudicated the show cause notice and allowed refund claim filed by the appellant. Almost after a year i.e., on 25-7-2007, the department issued another show cause notice to the appellant under provisions of Section 11A of Central Excise Act, 1944 seeking to claim back the refund which was sanctioned to the appellant vide Order-in-Original No. 192/2006-07 on the ground that said refund was erroneously refunded. The proceeding against the second show cause notice is pending. Meanwhile, the learned Commissioner as reviewing authority, as per the powers granted to him under provisions of Section 84 of Finance Act, 1994 issued another show cause notice dated 11-6-2008 directing the appellant to show cause as to why the Order-in-Original No. 192/2006-07 be not reviewed by him and pass an order under provisions of Section 84. Appellant resisted the proposal made in the review show cause notice. The learned Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the lower authorities which is not there in the demand notice served on the assessee." 4. Learned departmental representative on the other hand would submit that the provisions of Section 84(1) very clearly indicate that the Commissioner can review the order passed by the Adjudicating Authority who is sub-ordinate to him. He would submit that provisions of Section 84(1) very clearly indicate that the Commissioner may make such inquiry and cause such inquiry to be made and pass an order thereon as he thinks fit. He would submit that the Commissioner made review inquiry and issued a show cause notice to the assessee indicating wherein the Adjudicating Authority's order seems to be erroneous. He would submit that Commissioner was well within the rights to issue a show cause notice and adjudicate the same as reviewing authority under provisions of Section 84(1), which confers such powers on him. He would also submit that the pendency of show cause notice under Section 11A is altogether a different issue for recovery of erroneously granted refund. It is his submission that the proceedings under second show cause notice need not be concluded and the Commissioner need not wai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity who was subordinate to him in the current proceedings. I find that the Adjudicating Authority i.e., Assistant Commissioner in the first place had issued a show cause notice to the appellants directing to show cause as to why the refund should not be rejected on the following grounds. "4. The assessee states that they had given some consultancy service to M/s. ALCOA Fastening Systems, France and received a sum of USD 57581.33 and the assessee has paid Service Tax on this amount also. The amount so paid is Rs. 299561/-. They have stated that the said service amounts to 'export of service' and the same is exempted from payment of service tax as per Rule 3(3)(1) of the Export Services Rules, 2005. Further, they have stated that they have not passed on the incidence of the service tax paid to the Government to any other person including the foreign company. Further, they have stated that as per the Supreme Court's decision in Kuil & Fireworks Industries v. CCE - 1997 (95) E.L.T. 3 (S.C.) wrongly paid service tax is liable to be refunded along with interest. 5. Whereas, it appears that the Noticee has contravened the provisions of Section 68, 67, 70 of the Finance Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seen from the records that this allegation was not put forth by the Adjudicating Authority to the assessee. In my considered view, a new case cannot be made out against the assessee in revisionary proceedings as these revisionary proceedings were in place of an appellate proceedings, which were absent in the provisions of the Finance Act, 1994 during the relevant period. Suffice to say that subsequently, the provisions of Section 84 were deleted and appellate proceedings were introduced. Hence, reading of the current provisions and old provisions would indicate that the learned Commissioner as a revisionary authority could have only passed an order within the framework of the show cause notice which has been initially issued and adjudicated by the Adjudicating Authority and could not have made a new case. My above conclusions are fortified by the decision of the coordinate bench in the case of Sands Hotel Pvt. Ltd. (supra). I am respectfully following the said decision and reproduce the findings below : "7. I am in agreement with the plea taken by the appellant that the original show cause notice nowhere brings out the facts on the basis of which it has been concluded that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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