2003 (5) TMI 3 - AT - Service Tax

Tribunal overturns Commissioner's order, citing legal flaws.

The Tribunal allowed the appeal, stating that the revised order passed by the Commissioner of Central Excise was not sustainable in the eye of the law. - ... Prohibition on revision during pendency of appeal - Interpretation of Section 84(4) of the Finance Act, 1994 - Revision of orders by the Commissioner of Central Excise - Service TaxProhibition on revision during pendency of appeal - Interpretation of Section 84(4) of the Finance Act, 1994 - Revision of orders by the Commissioner of Central Excise - Validity of the Commissioner's revision of the adjudicating authority's order while an appeal against that order was pending before the Commissioner (Appeals). - HELD THAT: - The Court examined the wording of Section 84(4) of the Finance Act, 1994 and the sequence of events: an adjudicating authority's order was challenged by the Department before the Commissioner (Appeals), and while that appeal remained pending the Commissioner proceeded to revise the adjudicating authority's order. The submissions that a withdrawal application filed by the Department operated to terminate pendency prior to formal dismissal were considered but rejected on the facts, the Court holding that the statutory bar in Section 84(4) prevents the Collector/Commissioner from passing a revision order in respect of any issue which is the subject of an appeal pending before the Collector (Appeals). Because the Commissioner revised the order during the pendency of the appeal, the revision was outside the power conferred by the statute and therefore unsustainable. [Paras 5]The Commissioner's revision made while the appeal before the Commissioner (Appeals) was pending is invalid; the appeal is allowed with consequential relief.Final Conclusion: The revision order passed by the Commissioner while the matter was pending before the Commissioner (Appeals) is held to be ultravires Section 84(4) of the Finance Act, 1994; the appeal is allowed and the revision is set aside with consequential relief, if any. The appeal was filed by the assessee against the impugned order passed by the Commissioner of Central Excise, Bangalore regarding Service Tax. The Commissioner revised the order while the matter was pending before the Commissioner (Appeals), which was not permissible under Section 84(4) of the Finance Act, 1994. The Tribunal allowed the appeal, stating that the revised order was not sustainable in the eye of the law.