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TMI Blog2015 (7) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... it in respect of orders passed by adjudicating authorities subordinate to him. The section also specifically provided that no order under Section 84 shall be passed by the Commissioner in respect of any issue, if an appeal against the said issue is pending before the Commissioner of Central Excise (Appeals). What emerges from the provisions of Section 84 is that Revenue has two options when it is found that the decision or order is not acceptable. One is to file an appeal before the Commissioner (Appeals) and the other one is to take up revision as per the provisions of Section 84 of Finance Act 1994. There are two views possible. The first view is that the Commissioner is in fact just revising the order or modifying the order. When I see t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and adjustment of ₹ 1,00,000/- paid by the assessee before the issue of show-cause notice. Addl. Commissioner imposed a penalty of ₹ 16,51,993/- under Section 78 of Finance Act 1994. This was done in view of the fact that appellant had deposited an amount of ₹ 1,00,000/- prior to the issue of show cause notice and this was deducted by the Addl. Commissioner for arriving at the quantum of penalty payable by the assessee. 2. Commissioner took the view that according to the provisions of Section 73, when a person pays a part amount along with interest and 25% of the part amount towards penalty, then, only such part amount can be adjusted against the total amount due from such person for the purpose of calculating pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, the person, liable to pay such service tax or erroneous refund, as determined under sub-section (2) of section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service tax so not levied or paid or short-levied or short-paid or erroneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 4th proviso and submits that only by appellate authorities, that too when there is an increase or decrease in the amount demanded, option to pay 25% of the increased amount can be extended. According to the provisions, even when the penalty is enhanced by Commissioner (Appeals) or by Tribunal, the option to pay 25% would be limited to enhanced duty, interest and penalty and not to the amount which was confirmed by the original authority. That being the position, Commissioner could not have extended the option. 7. I have considered the submissions. The provisions relating to extension of option and availability of option in respect of Commissioner (Appeals) and the Tribunal cannot be applied to the order of the Commissioner and this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r enhancing the penalty. Order of the original authority gets merged with order passed by the Tribunal or the Commissioner (Appeals). Therefore, one way of looking at it is that the orders passed by Commissioner (Appeals) or the Tribunal and the order-in-revision passed by the Commissioner have the similar consequences and therefore, the option given by the Commissioner is not in accordance with law. In the second scenario, the order is only a modification or a revision. In such a case it is possible to take a view that while modifying the order passed by the original authority, Commissioner has the liberty to modify the portion relating to the option also. Since the Commissioner has modified the order and is not considering an appeal, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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