TMI Blog2011 (4) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 5G of the Central Excise Act, 1944 (for short, 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 (Appeal) 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(13) STR 230 (Raj). 3. We have heard learned counsel for the revenue. 4. Learned counsel for the revenue submits that the issue in appeal before the Commissioner (Appeals) related only to validity of Order-in-Original levying service tax and not to enhancement thereof and thus, Section 84(4) of the Finance Act, 1994 could not apply. 5. We are unable to accept the submission. Section 84 of the Finance Act, 1994 to the extent relevant is as under:- (1) The Commissioner of Central Excise may call for records of a proceeding under this chapter which has been taken by the subordinate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of excise has not been levied or paid or has been short- levied or shortpaid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, shortlevied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in section 11 A to show cause against the proposed order. 6. In view of above provision, even higher liability of the assessee had to be treated to be in issue before the Commissioner (Appeals). Thus, exercise of revisional jurisdiction under Section 84(4) of the Finance Act, 1994 when appeal had been preferred was not permissible. The view taken by the Tribunal is consistent with above statutory provision. 7. No substantial que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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