- (1.) This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 ('the Act') against the order of the Customs Excise and Service-tax Appellate Tribunal dated 21-5-2010 in Appeal No. 197/10, Annexure A-4, claiming following substantial question of law: Whether the Commissioner can pass Order-In-Revision under Section 84 of the Finance Act, 1994, on an issue when the appeal decided by the Commissioner (Appeals) is entirely on different issue?
(2.) The Assessee is a builder and is covered by the provisions relating to levy of service tax under the Finance Act, 1994. A show cause notice was issued alleging evasion of service tax and for levy of penalty and thereafter, Order-in-Original dated 13-6-2008 was passed against the Assessee. The Assessee filed an appeal which was allowed only in respect of the penalty. Simultaneously, suo motu revisional jurisdiction was exercised by the Commissioner under Section 84(1) of the Finance Act, 1994 enhancing the liability of the Assessee. The Assessee challenged the said order on the ground that exercise of suo motu revisional jurisdiction when an appeal had been filed was barred under Section 84(4) of the Finance Act, 1994. This plea has been upheld by the Tribunal, as follows: Heard both sides and perused the records. We are not in agreement with the revenue's submission, when we find that revenue did not wait to initiate suo motu revision proceedings after examination of the appellate order passed by the ld. Commissioner (Appeals). Within two months of passing of the order by the appellate authority on 16-6-2009, while first appellate order was passed on 16-4-2009. Similar such cases are coming before us frequently. It is embarrassing for us to declare exercise of jurisdiction by one Commissioner is bad and by the other good. But in this case we are compelled to declare that the Revisional order was unsustainable following the judgment of the Hon'ble High Court of Rajasthan in the case cited . When we noticed that this case is of similar nature, what that was before the Hon'ble High Court of Rajasthan, where the first appellate order was passed on 13-10-2004 and notice for revision was issued on 12-8-2005, we dispose the appeal of the Appellant as allowed, so also dispose the stay application. Order of Rajasthan High Court referred in the order of the Tribunal is Union of India v. Inani Carriers,2009 18 STT 473.
(3.) We have heard learned Counsel for the revenue.;