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2016 (9) TMI 1103 - CESTAT NEW DELHI

2016 (9) TMI 1103 - CESTAT NEW DELHI - 2017 (48) S.T.R. 149 (Tri. - Del.) - Power and jurisdiction of Commissioner - Commissioner directed the Assistant Commissioner to file an appeal before the Commissioner (Appeals) against the order of original adjudicating authority prior to 19.08.2009 - Held that:- Sections 84 clearly reveals that prior to 19.08.2009, it was the Commissioner himself who was having the power and jurisdiction to call for the records of proceedings before the adjudicating auth .....

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istant Commissioner to file an appeal was passed on 05.03.2009 i.e. well before 19.08.2009. As such, it can be safely held that, during the relevant period, there were no powers or jurisdiction with the Commissioner to direct the Assistant Commissioner to challenge the order passed by him before the Commissioner (Appeals). As such, the appeal filed by the Assistant Commissioner before the Commissioner (Appeals) in terms of the order-in-review dated 05.03.2009 is without jurisdiction and against .....

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ugh the Section 83 of the Finance Act, 1994, we note that while adopting certain provisions of Central Excise Act, 1944, which stand mentioned in the said Section itself, Section 35-E does not stand adopted. In this view also, we find that the order directing the lower authority to file an appeal before the Commissioner (Appeals) is beyond the scope of Section 83 of the Finance Act, 1994 itself. Therefore, by following the various decisions, the impugned order of commissioner (Appeals) is withou .....

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ts who are exporters, claimed refund of service tax paid on various service utilized for export of the goods in terms of notification No. 41/2007-ST dated 6.10.2007. In both the cases, the original adjudicating authority allowed the refund claims vide the it two different orders dated 26.5.2009 and dated 9.4.2009. 3. The said order of the Assistant Commissioner was reviewed by the Commissioner vide his order dated 20.07.2009 in both the cases and by exercising the powers in terms of Section 35-E .....

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ing the relevant period, there was no power with the Commissioner to direct the lower authority to file an appeal before the Commissioner (Appeals) by drawing our attention to the provisions of Section 84 of the Finance Act, 1994, as they were on the Statute book. During the relevant period, the commissioner could himself call for the records of the proceedings and was empowered to pass an order thereon, as deem fit. The learned advocate submits that the said provisions of Section 84 were replac .....

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has relied upon various decisions of the Tribunal. 5. The learned DR appearing for the Revenue leaves the matter for the Bench to decide. 6. After carefully considering the submissions made by both sides, we find that Section 84 of the Finance Act, 1994, during the relevant time, read as under : 84(1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter [in which an adjudicating authority subordinate to him has passed any decision or order] and may make .....

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er for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any Central Excise Officer subordinate to him to apply to the Commissioner of Central Excise (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order. 7. A reading of the above Sections clearly reveals that prior to 19.08.2009, it was the Commissioner him .....

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in the present proceedings, was passed on 28.01.2009 and the order in review by the Commissioner directing the Assistant Commissioner to file an appeal was passed on 05.03.2009 i.e. well before 19.08.2009. As such, it can be safely held that, during the relevant period, there were no powers or jurisdiction with the Commissioner to direct the Assistant Commissioner to challenge the order passed by him before the Commissioner (Appeals). As such, the appeal filed by the Assistant Commissioner befor .....

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tes to the refund of the service tax, excess paid by the assessee, and as such the provisions of the Finance Act, 1994 would apply. However, we note that certain provisions of Central Excise Act, 1944 have been adopted for the disputes relating to service tax in terms of the provisions of Section 83 of the Finance Act, 1994. On going through the Section 83 of the Finance Act, 1994, we note that while adopting certain provisions of Central Excise Act, 1944, which stand mentioned in the said Secti .....

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