TMI Blog2012 (7) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 - the impugned order is not sustainable and, hence, has to be set aside - in favour of assessee. - Service Tax Appeal No.184 of 2007 - ST/648/2011 - Dated:- 20-12-2011 - Archana Wadhwa, Rakesh Kumar, JJ. For Appellant: Shri Alka Arren, Adv. For Respondent: Shri K K Jaiswal, DR Per: Rakesh Kumar: The appellant are a dealer operated godown operator for M/s. IOC Ltd. (IOCL) for which they have agreement between them and IOC. In terms of their agreement with IOC, they have to make provision for storage of lubricants along with an office with furniture, telephone, water, electricity, toilet and other amenities as per requirement, providing safe custody of the products and materials kept in the godown, provision for all types of secretarial assistance including receiving of payments from the customers and depositing the the name in IOC's Bank Account and liaisioning with the bank, operation and supervision of the godown, maintaining adequate manpower of the staff of requisite competence and skill for fulfilling all the required jobs to be carried out under the work order, etc. For all these operations, the appellant, as per their agreement with IOCL received an amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w bearing the date 29.12.06 confirmed the service tax demand of Rs.5,43,618/- including the amount of Rs.94,272/- already confirmed and paid by the appellant. Besides this, he also ordered recovery of interest on the service tax and imposed penalties under Section 75 A, Section 76, Section 77 and Section 78 of the Finance Act, 1994. Against this order of the Commissioner, this appeal has been filed. 4. Heard both the sides. 5. M/s Alka Arren, Advocate for the appellant pleaded that the review order is time barred as the same has been passed after the expiry of the limitation period of two years, that while the order-in-original had been passed by the Asstt. Commissioner on 15.12.2004, the review order has been issued by the Commissioner on 29.12.2006, that signing of order on the note sheet is not the passing of the review order and in this regard, she relies upon the judgement of the Tribunal in the case of CCE, Pune-I Vs. Charnia Company reported in 2007 (215) ELT 129 (Tribunal-Mumbai) , that even on merits, the impugned order is not correct as the service tax was chargeable only on the commission received by the appellant after excluding the reimbursable expenses. 6. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall communicate the order passed by him under sub-section (1) to the assessee, the [such adjudicating authority] and the Board. (4) No order under this section shall be passed by the [Commissioner] of Central Excise in respect of any issue if an appeal against such issue is pending before the [Commissioner] of Central Excise (Appeals). (5) No order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed." 9. From perusal of this Section, it will be clear that while the order passed by an officer subordinate to the Commissioner can be reviewed by the Commissioner, if the review action is pre-judicial to the assessee, an opportunity for hearing is required to be given and the order passed by the Commissioner is required to be communicated to the assessee and also to the Board. Sub-section (5) of Section 84 states in the clear terms that no order under this Section shall be passed after expiry of 2 years from the date on which the order sought to be revised had been passed. Passing of order as a reviewing authority is different from taking a decision to review. Hon'ble Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute, but it is so under the general law." 9.1 Thus for the purpose of review, the date of the passing the order would be the date on which the order or decision is made public or notified in some form or when it can be said to have left the adjudicator's hand. Unlike the Tribunals or the courts, where the orders are pronounced in the open court, the orders passed by a Commissioner of Customs/Central Excise as adjudicating Authority or as reviewing authority under Section 84 of Finance Act, 1994 are not pronounced in the open court. Therefore, in such cases, the date of passing the order would be the date on which the order was dispatched to the assessee, not the date on which the decisions was recorded in the review file as on this date it can be said that the adjudicating authority has ceased to have authority to tear it off and draft a different order. In contrast to this, in terms of the ratio of the above-mentioned judgment of the Apex Court, for the assessee, the limitation period for filing appeal would start from the date of communication of the order to him. 10. Another important ratio of the Apex Court's judgment in case of CCE vs. M.M. Rubber Co. (supra) is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is more than adequate to ensure action in appropriate cases particularly in comparison with the much shorter period an assessee has within which to exercise his right of appeal. If, on the other hand, there is no such requirement or practice and the period within which the Board can interfere is left to depend on the off-chance of the Board coming to know of the existence of a particular order at some point of time, however distant, only administrative chaos can result. We are, therefore, of the opinion that the period of one year fixed under sub-section (3) of Section 35E of the Act should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective." 11. Thus the review power under Section 84 of the Finance Act, 1994, which is the power of superintendence conferred on a superior authority to ensure that the subordinate officers exercise their powers under the Act correctly and properly, has to be exercised by passing an order within the limitation period prescribed, which starts from the date on which the order sought to be reviewed was passed. As discussed in p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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