Poorva Sainik Shram Suraksha Samiti vs C.C.E., Allahabad
- CitationService Tax Appeal No.800 of 2010
Ratio decidendi
The rule this decision rests on
Where the adjudication order that a revisional authority seeks to review has been set aside in appeal, no order subsists for revision, so the revisional jurisdiction under Section 84 of the Finance Act, 1994 (as it stood before its 2009 amendment) cannot be exercised, even in respect of an aspect, such as non-imposition of penalty, that was not the subject of the assessee's appeal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Arising out of the order in Revision No. (S.Tax 39/2009) 68/2009 dated 6.10.2009 passed by the Commissioner , Central Excise, Service Tax, Allahabad.
For approval and signature:
Honble Mr. Justice G. Raghuram, President
Honble Mr. H.K. Thakur, Technical Member
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
Poorva Sainik Shram Suraksha Samiti . Appellants
Vs.
C.C.E., Allahabad .. Respondent
Appearance:
None for the appellants
Present Shri B.B. Sharma, A.R. for the respondent/Revenue
Coram: Honble Mr. Justice G. Raghuram, President
Honble Mr. H.K. Thakur, Technical Member
Final Order No.52158/2015
Per Justice G. Raghuram:
Notice of hearing of this 2010 Appeal was dispatched to the appellant but there is no representation on behalf of the appellant at the hearing today. On behalf of the appellants Counsel a letter is however filed seeking adjournment on the ground that appellants Counsel Shri L.P. Asthana is out of the Country and an associate Counsel Mrs.Reena Khair is professionally preoccupied elsewhere. In the circumstances of the case however we dispose of the case ex parte the appellant after hearing the ld. A.R. for the Respondent/Revenue.
2. The assessee is the appellant. The appeal is filed against the Order-in-Revision dated 6.10.2009 passed by the Commissioner of Central Excise and Service Tax, Allahabad, exercising powers under Section 84 of the Finance Act, 1994 (as this provision stood prior to its amendment by Finance Act, 2009 with effect from 19.8.2009). Section 84 of the Act conferred revisional powers on the Commissioner against any order passed by an adjudicating authority subordinate to him. Sub-sections (4) & (5) of Section 84 disable exercise of the revisional jurisdiction in respect of any issue if an appeal against such such is pending before the Commissioner (Appeals), or after expiry of two years from the date on which the order sought to be revised was passed, respectively.
3. The impugned order reviewed the primary adjudication order dated 23.10.2007 passed by the Assistant Commissioner, Central Excise Division, Faizabad. The order dated 23.10.2007 confirmed service tax demand of Rs.4,19,608/- along with interest imposed penalties under Sections 75A, 76 and 77 of the Act. No penalty under Section 78 was however imposed.
3. Against the order dated 23.10.2007, the appellant herein preferred an appeal. This was allowed by the order of the Commissioner (Appeals), Customs, Central Excise and Service Tax, Allahabad, dated 26.5.2008. The appellate order declared the demand to be unsustainable and consequently the penalties as well; set aside the adjudication order dated 23.10.2007 and allowed the appeal. As a consequence of the appellate order dated 26.5.2008, it follows that the primary adjudication order dated 23.10.2007 ceased to exist, by reason of appellate effacement.
4. In view of the above, there was no adjudication order available for exercise of revisional powers under Section 84 of the Act. Though the revision was proposed as against non-imposition of penalty in the primary adjudication order, which is an aspect distinct from the issues on which the assessee had preferred an appeal before the appellate Commissioner, in view of setting aside of the primary adjudication order by the appellate order dated 26.5.2008, there was no order available for exercising revisional jurisdiction, on or after 26.5.2008.
5. On the above analyses, the impugned order dated 6.10.2009 is unsustainable. This position is also settled by a judgment of the Rajasthan High Court in Union of India vs. Inani Carriers 2009 (13) STR 230 (Raj.).
6. For the aforesaid reasons, the impugned order is quashed, but in the circumstances no order as to costs.
(Justice G. Raghuram)
President
(H.K. Thakur)
Technical Member
scd/
1
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