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TMI Blog2016 (9) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine the order of the adjudicating authority and if he was not satisfied, to direct the said authority to file an appeal before the Commissioner (Appeals). The impugned order of the Assistant Commissioner, in the present proceedings, was passed on 28.01.2009 and the order in review by the Commissioner directing the Assistant Commissioner to file an appeal was passed on 05.03.2009 i.e. well before 19.08.2009. As such, it can be safely held that, during the relevant period, there were no powers or jurisdiction with the Commissioner to direct the Assistant Commissioner to challenge the order passed by him before the Commissioner (Appeals). As such, the appeal filed by the Assistant Commissioner before the Commissioner (Appeals) in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon order as the issue involved in both of them is identical. 2. It is seen that the appellants who are exporters, claimed refund of service tax paid on various service utilized for export of the goods in terms of notification No. 41/2007-ST dated 6.10.2007. In both the cases, the original adjudicating authority allowed the refund claims vide the it two different orders dated 26.5.2009 and dated 9.4.2009. 3. The said order of the Assistant Commissioner was reviewed by the Commissioner vide his order dated 20.07.2009 in both the cases and by exercising the powers in terms of Section 35-E(2) of the Central Excise Act, 1944 directed the Assistant Commissioner to file an appeal before the Commissioner of Central Excise (Appeals). In ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . After carefully considering the submissions made by both sides, we find that Section 84 of the Finance Act, 1994, during the relevant time, read as under : 84(1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter [in which an adjudicating authority subordinate to him has passed any decision or order] and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit. Thereafter, w.e.f. 19.08.2009, the said Section 84(1) was replaced and new Section 84(1) was introduced which is to the following effect : 84(1) The Commissioner of Central Excise may, of his own motion, call for and examine the record of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enge the order passed by him before the Commissioner (Appeals). As such, the appeal filed by the Assistant Commissioner before the Commissioner (Appeals) in terms of the order-in-review dated 05.03.2009 is without jurisdiction and against the clear law laid down in the Act. Consequently, the order-in-original passed by the Commissioner (Appeals) is bad in law, being beyond jurisdiction. 8. We also note, at this stage, that the Commissioner has passed the review order dated 20.07.2009 in exercise of the provisions of sub-section (2) of Section 35-E of the Central Excise Act, 1944. The dispute in the present appeal relates to the refund of the service tax, excess paid by the assessee, and as such the provisions of the Finance Act, 1994 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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