NavIn Chemical Enterprises Vs. Commr. of C. Ex., Bhopal - Court Judgment

Excerpt:

.....have filed this appeal being aggrieved by the order-in-appeal no. 526-542/bpl/2001, dated 19-10-2001 passed by the commissioner (appeals).2. the facts of the case are that the appellants were issued a show cause notice asking them to explain as to why service tax should not be levied and collected from them for the service under goods transport operators. the appellants filed reply to show cause notice stating that the show cause notice was not legally sustainable. the deputy commissioner adjudicated the case dropping the proceedings against the appellants. this order was reviewed by the commissioner and directed the deputy commissioner to file an appeal before commissioner (appeals). the commissioner (appeals) in the impugned order set aside the order passed by the deputy commissioner dropping the demand and allowed the appeal filed by the department.4. shri atul dikshit, learned sdr in his fairness submits that the commissioner has powers to revise the orders passed by his subordinate.however, no power to review the order passed by a subordinate officer is vested in the commissioner. in the instant case the commissioner instead of revising the order passed by the deputy.....

Judgment:

1. M/s. Navin Chemical Enterprises have filed this appeal being aggrieved by the Order-in-Appeal No. 526-542/BPL/2001, dated 19-10-2001 passed by the Commissioner (Appeals).

2. The facts of the case are that the appellants were issued a show cause notice asking them to explain as to why service tax should not be levied and collected from them for the service under Goods Transport Operators. The appellants filed reply to show cause notice stating that the show cause notice was not legally sustainable. The Deputy Commissioner adjudicated the case dropping the proceedings against the appellants. This order was reviewed by the Commissioner and directed the Deputy Commissioner to file an appeal before Commissioner (Appeals). The Commissioner (Appeals) in the impugned order set aside the order passed by the Deputy Commissioner dropping the demand and allowed the appeal filed by the Department.

4. Shri Atul Dikshit, learned SDR in his fairness submits that the Commissioner has powers to revise the orders passed by his subordinate.

However, no power to review the order passed by a subordinate officer is vested in the Commissioner. In the instant case the Commissioner instead of revising the order passed by the Deputy Commissioner followed a wrong course which was not permitted under Section 84 of Chapter V of the Finance Act, 1994. He submits that since there was no power vested in the Commissioner to review the order passed by the Deputy Commissioner to file an appeal before the Commissioner (Appeals), therefore, the order passed by the Commissioner (Appeals) in the circumstances, is non-est.

5. We have heard the learned SDR. We note that under Section 84 of Chapter V of the Finance Act, 1994 there is no provision for review of order and directing the Deputy Commissioner to file appeal before Commissioner (Appeals). In the circumstances, the appeal filed by Deputy Commissioner and the order passed by the Commissioner (Appeals) on that appeal is a nullity and hence the Stay Petition and Appeal are allowed. Consequential benefit, if any, shall be admissible to the appellant(s) in accordance with law.