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TMI Blog2022 (12) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... his stage to the Commissioner for an order on the impugned show cause notice, particularly since it appears to have been issued in violation of Section 79(4)(b) read with Section 79(5) of the OVAT Act. The counter affidavit fails to answer to the principal ground of challenge viz., that despite there being available to the Department the remedy of an appeal in terms of Section 78 of the OVAT Act, the Commissioner has chosen to exercise suo motu revisional power under Section 79 (1) of the OVAT Act. Further, there is no denial in the counter affidavit that there is statutory bar under Section 79 (4) (b) of the VSAT Act to the Commissioner exercising suo-motu revisional power since the issue was already the subject matter of an appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CST. 4. Nearly four years later, the impugned notice dated 11th January, 2016 was issued by the Commissioner invoking the suo motu power of revision under Section 79 (1) of the OVAT Act for the said period on the ground that the deduction allowed by the JCST was erroneous and prejudicial to the interests of the Revenue. 5. Section 79 (4) (b) and Section 79 (5) of the OVAT Act read as under: 79. Revisional power of Commissioner. (4) The Commissioner shall not revise, under sub-section (1), any order, if- (a) xxxxxxxxx xxxxxxxx (b) The order has been made a subject matter of appeal under section 77 or 78 (5) Notwithstanding anything contained in sub-section (4), the Commissioner may pass an order under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner for an order on the impugned show cause notice, particularly since it appears to have been issued in violation of Section 79(4)(b) read with Section 79(5) of the OVAT Act. 10. The counter affidavit fails to answer to the principal ground of challenge viz., that despite there being available to the Department the remedy of an appeal in terms of Section 78 of the OVAT Act, the Commissioner has chosen to exercise suo motu revisional power under Section 79 (1) of the OVAT Act. Further, there is no denial in the counter affidavit that there is statutory bar under Section 79 (4) (b) of the VSAT Act to the Commissioner exercising suo-motu revisional power since the issue was already the subject matter of an appeal. 11. The legal posit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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