2015 (10) TMI 1855

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.... me under Section 84 of the Finance Act, 1994, revise the Order-in-Original No. MP (ST)-05/07) 14 of 2007 dated 31/10/2007 to the extent as under :- (i) I order for recovery of inadmissible Cenvat credit amounting to Rs. 1,10,105/- wrongly availed and utilized during the period from 04/02/2005 to September 2005 under Rule 14 of Cenvat Credit Rules, 2004 read with Section 73 of the Finance Act 6, 1994 alongwith interest under Section 75 of Finance Act, 1994. (ii) I order for recovery of wrongly availed inadmissible Cenvat credit of Rs. 5,86,904/- (including the service tax credit of Rs. 61,794/- wrongly utilized) during the period from October, 2005 to March, 2006 under Rule 14 of Cenvat Credit Rules, 2004 read with Section 73 of Finan....

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....admissible. The primary Adjudicating Authority passed the following order. "1. I order recovery of wrongly availed inadmissible Cenvat credit amounting to Rs. 1,10,105/- for the period from 10th February, 2005 to September, 2005 and Rs. 5,75,496/- wrongly availed during the period October, 2005 to March, 2006 from M/s Omar Agencies (Hutch), Banda under Section 73 of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit Rules, 2004 and Section 11A of the Central Excise Act, 1944 alongwith interest on the above amounts under Section 75 of the Finance Act, 1994 read with Section 11AB of the Central Excise Act, 1944. 2. I order recovery of Cenvat credit amounting to Rs. 61,974/- wrongly utilized for the period October, 2005 to Marc....

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....r Business Auxiliary Service and, hence, service tax is not leviable on the assessee. 5. Revenue is in appeal against the said order-in-appeal. 6. We have considered the submissions of both sides. 7. As regards the leviability of service tax under Business Auxiliary Service on the commission received by the assessee from M/s Aircel Digilink India Ltd. Co. for providing/selling the SIM card/recharge vouchers, the issue stand covered in favour of assessee by CESTAT in a series of judgments including in the case of Anand Sales Corpn. v. CCE [final order No. ST/A/50337-50344/2014 dated 29/01/2014] which clearly held that such commission is not liable to service tax under the Business Auxiliary Service. The said order of the CESTAT reli....

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....an merit it is seen that the Order-in-Revision under Section 84 of Finance Act, 1994 (as it stood during the relevant time) was passed on 16/10/2009 while the Order-in-Appeal against the same Order-in-Original was first passed on 28/03/2008. Section 84 (4) ibid at the relevant time clearly stipulated that No order under this section shall be passed by Commissioner of Central Excise in respect of any issue if an appeal against such issue is pending before Commissioner of Central Excise (Appeals). The Commissioner while passing the Order-in-Original took the view that admissibility of impugned Cenvat credit was not the issue before the Commissioner (Appeals). We find that the Commissioner (Appeals) in the Order-in-Appeal dated 28/03/2008 has ....