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TMI Blog2011 (4) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... y: None JUDGEMENT Per: Adarsh Kumar Goel: 1. This appeal has been preferred by the revenue under Section 35G 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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-moto revision proceedings after examination of the appellate order passed by the ld. Commissioner (Appeals). Within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be revised has been passed." A perusal of above provision shows that if any issue is pending in appeal, the revisional jurisdiction could not be exercised. No doubt in the appeal of the assessee, the issue was only validity of Order-in-original, by virtue of Section 35A(3) of the Central Excise Act, 1944, the Commissioner (Appeals) could also go into the question of higher liability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless 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 permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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