2010 (1) TMI 450 - AT - Service Tax

Tribunal waives pre-deposit, sets aside order for incorrect review, allows appeal -Deposit

The Tribunal waived the pre-deposit condition and proceeded to hear and dispose of the appeal directly due to the narrow scope of the issue. The ... Revision of order by Commissioner - the appellant herein had availed benefit of abatement of 75 per cent of the value of the GTA services. The adjudicating authority confirmed the differential duty raised on such abatement availed by the appellant. Aggrieved by such an order, the appellant preferred an appeal before the ld. Commissioner (Appeals). During the pendency of such an appeal, ld. Commissioner, as a revisionary authority, issued a show-cause notice, as per provisions of section 84 of the Finance Act, 1994. Held that - Commissioner could not have proceeded in reviewing said order in original and therefore, impugned order liable to set aside. Issues:1. Waiver of pre-deposit of service tax, interest, and penalty.2. Availment of abatement of GTA services.3. Review of Order-in-Original by revisionary authority.4. Applicability of section 84(4) of the Finance Act, 1994.Analysis:Issue 1: Waiver of pre-depositThe appellant filed a stay petition seeking waiver of pre-deposit of service tax, interest, and penalties. However, the Tribunal found that the appeal could be disposed of directly due to the narrow scope of the issue. The Tribunal waived the pre-deposit condition and proceeded to hear and dispose of the appeal.Issue 2: Availment of abatement of GTA servicesThe appellant had availed a 75% abatement on the value of GTA services. The lower authorities contended that the appellant could not claim this abatement without evidence that the transporter did not avail Cenvat credit. The adjudicating authority upheld the differential duty on the abatement claimed. The Commissioner, as a revisionary authority, reviewed the Order-in-Original and imposed a penalty under section 76. The Tribunal noted that the Commissioner could not review the original order while an appeal was pending, as per section 84(4) of the Finance Act, 1994. The Tribunal held that the Commissioner's order was incorrect and set it aside, allowing the appeal.Issue 3: Review of Order-in-OriginalThe Commissioner, as a revisionary authority, reviewed the Order-in-Original while an appeal was pending before the Commissioner (Appeals). The Tribunal emphasized that statutory provisions prohibited the Commissioner from reviewing the original order in such circumstances. The Tribunal found that the appellant failed to inform the Commissioner about the pending appeal, which was necessary. Consequently, the Tribunal set aside the impugned order and allowed the appeal.Issue 4: Applicability of section 84(4) of the Finance Act, 1994Section 84(4) of the Finance Act, 1994, states that no order can be passed by the Commissioner in respect of any issue if an appeal against that issue is pending. The Tribunal highlighted that the Commissioner's actions were in violation of this provision. The Tribunal concluded that the impugned order was erroneous and set it aside, ultimately allowing the appeal and disposing of the stay petition.