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2015 (10) TMI 2534 - CESTAT NEW DELHIRestoration of appeal - dismissed for non-prosecution - imposition of penalty - Department argued that the Order-in-Revision is only with regard to imposition of penalty, which was not a subject matter before the Commissioner (Appeals) and therefore the impugned Order-in-Revision is sustainable - Held that:- it is pertinent to note that imposition of penalty is related to the sustainability of the demand and therefore is not unlinked to the impugned demand. Further, under the then Section 84(4) ibid, it was clearly mentioned that “no order under Section 84 shall be passed by CCE in respect of any issue, an appeal against such issue is pending before the CCE (Appeals)”. It is seen that the appellant’s appeal was against Order-in-Original, dated 6-12-2007, in terms of which service tax demand of ₹ 7,15,923/- along with interest and penalties was confirmed and therefore it is obvious that the issue of penalty was very much a subject matter of the appeal pending before Commissioner (Appeals). As it is evident that the Order-in-Revision passed by the Commissioner was in violation of Section 84 ibid and therefore cannot be held to be sustainable. Accordingly, we set aside the impugned Order-in-Revision. - Decided in favour of appellant
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