2013 (8) TMI 292 - AT - Service Tax

Tribunal overturns review order, rules in favor of appellants, setting aside penalties under

The Tribunal allowed the appeal filed by M/s Alpha Polypropylene, setting aside the Commissioner's review order under Section 84 of the Finance Act, 1994. ... Revision of order by the commissioner Section 84 – clearing and forwarding agent services section 65(23) – Whether the order in revision passed by the commissioner valid – appellants are engaged in sales and purchase of the goods on behalf of their principals and their commission is based upon the quantum of sale and purchase – in the view of department activity of the appellant would fall under the category of Clearing and Forwarding Agent services under the provisions of Section 65(23) of Finance Act, 1994 and are charged to Service Tax – Held that:- one of the conditions mentioned in section 84 (ii) is not fulfilled - the order-in-review passed by the commissioner was not as per the provisions - the order was set aside – appeal allowed. Issues:1. Review of Order-in-Original by Commissioner under Section 84 of Finance Act, 1994.Analysis:The case involved an appeal filed by M/s Alpha Polypropylene against Order-in-Original No.26/Demand/Daman/2006 passed by the Commissioner, Central Excise & Service Tax, Daman. The Departmental officers contended that the appellants were engaged in sales and purchase activities on behalf of their principals, rendering services like procuring orders, collecting payments, and organizing supply of material. The Department viewed this activity as falling under the category of Clearing and Forwarding Agent services chargeable to Service Tax under Section 65(23) of the Finance Act, 1994. A show cause notice was issued demanding Service Tax, interest, and penalties. The original authority confirmed the notice, imposing penalties under various sections of the Finance Act, 1994. The Commissioner reviewed the Order-in-Original, enhancing the penalty under Section 76. The appellants challenged this review order in the present appeal.The Tribunal noted that the Commissioner's review order was passed under Section 84 of the Finance Act, 1994. The statutory requirements for revision of an order by a subordinate officer include that the order is not legal and proper, no appeal against the issue is pending before the Commissioner (Appeals), and the stipulated period from the issue of Order-in-Original is not over. The Tribunal found that the Commissioner confirmed in the order that no appeal against the Order-in-Original was pending before him. Additionally, the Commissioner (Appeals) had set aside the Order-in-Original in favor of the assessee, leading the Department to file an appeal before the Tribunal. As such, the condition that no appeal against the issue is pending before the Commissioner (Appeals) was not fulfilled in this case, rendering the Commissioner's review order improper. Consequently, the Tribunal set aside the review order and allowed the appeal filed by the appellants.Therefore, the Tribunal held that the Commissioner's review order did not comply with the provisions of Section 84 of the Finance Act, 1994, as the condition regarding the pending appeal before the Commissioner (Appeals) was not met. The appeal was allowed, and the review order was set aside.