ST - Since appellant had preferred appeal against entirety of adjudication order which included imposition of penalties, revisional proceedings are in clear transgression of provisions of Sec 84(4) of FA, 1994 - Appeal allowed: CESTAT
By TIOL News Service
NEW DELHI, JULY 24, 2014: PROCEEDINGS were initiated under a SCN alleging non-remittance of service tax for having provided "consulting engineer" service and for levy of interest and penalty.
The adjudication authority vide order dt. 22.02.2007 & corrigendum dt. 19.03.2007 confirmed the ST demand of Rs.6,16,233/- and imposed penalty of an equivalent amount under Section 76; imposed penalties under Section 75A and 77 of the FA, 1994 but without specifying the penalty under each of these provisions.
Aggrieved by this order, the appellant preferred an appeal on 25.5.2007 before the appellate Commissioner. By the order dated 29.8.2007, the appellate Commissioner dismissed the appeal. It seems that the appeal filed against this order was also dismissed by the Tribunal.
Incidentally, after the Commissioner (Appeals) disposed of the appeal preferred by the appellant vide order dated 29.8.2007 , a show cause notice dated 13.9.2007 was issued proposing revision of the adjudication order dated 22.2.2007 on the ground that composite penalties under Section 75A, 76 and 77 could not have been imposed; the adjudication order dated 22.2.2007 was thus unsustainable and is required to be revised. Consequently, in revision proceedings, an Order-in-Revision dated 30.1.2008 was passed.
The appellant is now before the CESTAT against this order whereby the CCE & ST, Allahabad revised the adjudication order dated 22.2.2007 and imposed penalty of Rs.500/- u/s 75A; penalty of Rs.6,16,233/- u/s 76 for violation of Section 68 of the Act; and penalty of Rs.500/- for each default u/s 77 of the Act for failure to file ST -3 returns required u/s 70 of the Finance Act, 1994.
The appellant challenges this order inter-alia on the ground that the order is in violation of the provisions of Section 84 (4) of the Act which at the material time read -
"No order under this provision shall be passed by the Commissioner of Central Excise in respect of any issue if an appeal against such issue is pending before the Commissioner of Central Excise (Appeals)".
It is, therefore, submitted that in view of the above, the respondent could not have passed the impugned order since the appellant had preferred an appeal on 25.5.2007 to the appellate Commissioner against the adjudication order dated 22.2.2007 and the appellate Commissioner had also disposed of the appeal on 29.8.2007 by dismissing the same.
The Bench observed -
"7. Judgments of the Rajasthan and Punjab & Haryana High Courts in Union of India vs. Inani Carriers - 2008-TIOL-648-HC-RAJ-ST; C.C.E. vs. Shiva Builders - 2011-TIOL-249-HC-P&H-ST are authorities for the proposition that if an issue is pending in appeal, the revisionaljurisdiction under Section 84 could not be exercised. Since the appellant had preferred an appeal against the entirety of the adjudication order dated 22.2.2007 which included imposition of penalties thereunder as well and the issue regarding validity of imposition of penalty was equally the subject matter of appellate proceedings pending before the appellate Commissioner since 25.5.2007, the date on which the appeal preferred to that authority had culminated in the order dated 29.8.2007 dismissing the appeal, the initiation of revisional proceedings is unsustainable.
8. On the above factual basis, the revisional proceedings initiated by the show cause notice dated 13.9.2007 and culminating in the impugned order in revision dated 31.1.2008 are in clear transgression of provisions of Section 84(4) of the Act. On this analysis, the impugned order is unsustainable and is quashed…”
The appeal was allowed.
In passing : By the way, who finally won? None…
(See 2014-TIOL-1323-CESTAT-DEL)
