inani Carriers Vs. Commissioner of Central Excise

inani Carriers vs Commissioner of Central Excise

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Jun 27, 2006

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Citation: sooperkanoon.com/42974
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: M Ravindran
Decided On: Jun 27, 2006
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

inani Carriers

Respondent

Commissioner of Central Excise

Legal References

Reported In: (2006)(105)ECC306

Excerpt

.....by the division bench of the tribunal in an identical issue.cce, madurai v.chellapandi match works 2006 (197) e.l.t. 272 (tri.-chennai) had an occasion to consider the situation which was identical as is before me.the division bench in the order at paragraph 5 held as under: 5. in the present case, it is apparent from the undisputed facts (which we have already stated) that, long before the collector of central excise, madurai, reviewed the asst. collector's order-in-original no. 42/93, the asst. collector's order had merged with order-in-appeal nos. 141 and 142/93, dated 4-11-1993 passed by the collector (appeals), trichy. the review order was passed as late as on 24-1-1994. on account of the merger, there was no order of the asst. collector to be reviewed on 24-1-1994, and, consequently, the appeal filed with the collector (appeals) by the department pursuant to the "review" was not maintainable as rightly held by id. collector (appeals) in order-in-appeal no. 69/94. we, therefore, reject the revenue's appeal filed against order-in-appeal no. 69/94.7. i find that in the present case before me, order-in-original was passed by the adjudicating authority on 16-1-2003. it is not explained in the review order, as to why the reviewing authority took almost 2 years for issuance of show cause notice to the appellants. further, it is also to be noted that the order of the commissioner (appeals) dated 13-10-2004 was passed and the copy was marked to the commissioner, central excise, jaipur-ii. the reviewing authority could have preferred an appeal against the order-in-appeal instead of resorting to review an order, non-existent on the date of issuance of show cause notice. in view of the facts and circumstances as indicated, to my mind impugned order is liable to be set aside. following the decision of division bench i allow the appeal with consequential relief, if any. appeal is allowed.

Full Judgment

2. The relevant facts that arise for consideration are that the appellants were issued a show cause notice for short/delayed payment of service tax for the quarter ending September, December, 2000, March, June, September, and December, 2001 and quarter ending March, 2002. The said show cause notice was adjudicated by the adjudicating authority and vide his Order-in-Original dated 16-10-2003 confirmed the demand of service tax and imposed penalty Under Section 76 of the Finance Act, 1994. Aggrieved by the said order the appellants preferred an appeal before the Commissioner (Appeals) who vide his Order-in-Appeal dated 13-10-2004 upheld the order-in-original. The appellants discharged service tax liability and also deposited the amount of penalty. The Commissioner of Central Excise, Jaipur-II, in exercise of powers vested in him Under Section 84 of the Finance Act, 1994 issued a show cause notice to the appellants on 12-8-2005 indicating that, he would like to review imposition of penalty. The appellants resisted the show cause notice on the sole ground that the order-in-original had already merged with the order-in-appeal dated 13-10-2004 and hence on the date of issuance of show cause notice there was no order-in-original which could be reviewed by the Commissioner. The Commissioner did not accept the contention and enhanced the penalty to the equivalent amount of service tax. Hence, this appeal.

3. Learned Advocate appearing for the appellants submits that it is settled law that once an appeal has been filed against the order-in-original, and if it is decided by the Commissioner (Appeals) then doctrine of merger applies in this case. He did not rely upon any case law to drive home his point.

4. Learned D.R. on the other hand submits that the proceedings initiated Under Section 84 of the Finance Act, 1994 are independent review powers of the Commissioner and these are parallel even if an appeal is filed by the appellants and the same being disposed of by the Commissioner (Appeals). It is his submission that the appellants' appeal against the order-in-original was restricted to the point that was against him, and did not cover lesser imposition of penalty by the adjudicating authority.

5. Considered the submissions made by both sides and perused the record. I find that the Commissioner of Central Excise, Jaipur-II had issued show cause notice to the appellants on 12-8-2005 indicating his intention to review the order-in-original dated 16-10-2003. It is very clear from the record that the said show cause notice was issued after order-in-appeal was passed. The said order-in-appeal was passed by the Commissioner (Appeals) on 13-10-2004. To my mind the issuance of show cause notice dated 12-8-2005 seems to be not in accordance with law settled by the Division Bench of the Tribunal in an identical issue.CCE, Madurai v.Chellapandi Match Works 2006 (197) E.L.T. 272 (Tri.-Chennai) had an occasion to consider the situation which was identical as is before me.

The Division Bench in the order at paragraph 5 held as under: 5. In the present case, it is apparent from the undisputed facts (which we have already stated) that, long before the Collector of Central Excise, Madurai, reviewed the Asst. Collector's Order-in-Original No. 42/93, the Asst. Collector's order had merged with Order-in-Appeal Nos. 141 and 142/93, dated 4-11-1993 passed by the Collector (Appeals), Trichy. The review order was passed as late as on 24-1-1994. On account of the merger, there was no order of the Asst. Collector to be reviewed on 24-1-1994, and, consequently, the appeal filed with the Collector (Appeals) by the Department pursuant to the "review" was not maintainable as rightly held by Id.

Collector (Appeals) in Order-in-Appeal No. 69/94. We, therefore, reject the Revenue's appeal filed against Order-in-Appeal No. 69/94.

7. I find that in the present case before me, order-in-original was passed by the adjudicating authority on 16-1-2003. It is not explained in the review order, as to why the reviewing authority took almost 2 years for issuance of show cause notice to the appellants. Further, it is also to be noted that the order of the Commissioner (Appeals) dated 13-10-2004 was passed and the copy was marked to the Commissioner, Central Excise, Jaipur-II. The reviewing authority could have preferred an appeal against the order-in-appeal instead of resorting to review an order, non-existent on the date of issuance of show cause notice. In view of the facts and circumstances as indicated, to my mind impugned order is liable to be set aside. Following the decision of division bench I allow the appeal with consequential relief, if any. Appeal is allowed.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties inani Carriers vs Commissioner of Central Excise Same Subject Service Tax Same Judge M Ravindran