2016 (9) TMI 1103

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.... for export of the goods in terms of notification No. 41/2007-ST dated 6.10.2007. In both the cases, the original adjudicating authority allowed the refund claims vide the it two different orders dated 26.5.2009 and dated 9.4.2009. 3. The said order of the Assistant Commissioner was reviewed by the Commissioner vide his order dated 20.07.2009 in both the cases and by exercising the powers in terms of Section 35-E(2) of the Central Excise Act, 1944 directed the Assistant Commissioner to file an appeal before the Commissioner of Central Excise (Appeals). In terms of the said review order of the Commissioner, an appeal was filed before the Commissioner (Appeals), who vide his impugned orders set aside the order of the original adjudicating ....

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....issioner of Central Excise may call for the record of a proceeding under this Chapter [in which an adjudicating authority subordinate to him has passed any decision or order] and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit. " Thereafter, w.e.f. 19.08.2009, the said Section 84(1) was replaced and new Section 84(1) was introduced which is to the following effect : "84(1) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceedings in which an adjudicating authority subordinate to him has passed any decision or order under this Chapter for the purpose of satisfying himself as to the le....

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....r-in-review dated 05.03.2009 is without jurisdiction and against the clear law laid down in the Act. Consequently, the order-in-original passed by the Commissioner (Appeals) is bad in law, being beyond jurisdiction. 8. We also note, at this stage, that the Commissioner has passed the review order dated 20.07.2009 in exercise of the provisions of sub-section (2) of Section 35-E of the Central Excise Act, 1944. The dispute in the present appeal relates to the refund of the service tax, excess paid by the assessee, and as such the provisions of the Finance Act, 1994 would apply. However, we note that certain provisions of Central Excise Act, 1944 have been adopted for the disputes relating to service tax in terms of the provisions of Sectio....