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2015 (7) TMI 273 - AT - Service TaxPower of revisionary authority - Option to pay 25% service tax, interest and penalty - Held that:- The provisions relating to extension of option and availability of option in respect of Commissioner (Appeals) and the Tribunal cannot be applied to the order of the Commissioner and this is the ground taken by the Revenue. It cannot be said that this observation is not correct. - According to Section 84 of Finance Act 1994 as it existed during the relevant time, The Commissioner can call for the records and after enquiry, pass an order as he deems fit in respect of orders passed by adjudicating authorities subordinate to him. The section also specifically provided that no order under Section 84 shall be passed by the Commissioner in respect of any issue, if an appeal against the said issue is pending before the Commissioner of Central Excise (Appeals). What emerges from the provisions of Section 84 is that Revenue has two options when it is found that the decision or order is not acceptable. One is to file an appeal before the Commissioner (Appeals) and the other one is to take up revision as per the provisions of Section 84 of Finance Act 1994. There are two views possible. The first view is that the Commissioner is in fact just revising the order or modifying the order. When I see the order passed by the Commissioner in this case, it is seen that the Commissioner in the concluding portion has stated that the order-in-original is modified to the extent mentioned by him. In the second scenario, the order is only a modification or a revision. In such a case it is possible to take a view that while modifying the order passed by the original authority, Commissioner has the liberty to modify the portion relating to the option also. Since the Commissioner has modified the order and is not considering an appeal, it can be considered as continuation of original proceedings and therefore the action taken by the Commissioner to extend the option cannot be found fault with. I consider the second view a better alternative view and therefore, I find no merit in the appeal filed by the Revenue - Decided against Revenue.
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