TMI Blog2016 (9) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not satisfied, to direct the said authority to file an appeal before the Commissioner (Appeals). The impugned order of the Assistant Commissioner, 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 before the Commissioner (Appeals) in terms of the order-in-review dated 05.03.2009 is without jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax Department. They filed a refund claim on 29.06.2007 seeking refund of service tax of ₹ 3,48,837/- paid by them during the period 19.04.2006 to 20.06.2006 on the ground that the same was inadvertently paid by them on international-in-bound roaming services, which were retrospectively exempted vide Notification No. 36/2007-ST dated 15.06.2007. 2. The said refund claim was taken up for adjudication by the Assistant Commissioner, who vide his order dated 28.01.2009 sanctioned the same in terms of the provisions of Section 11-B of the Central Excise Act, 1944 as made applicable to the service tax vide Section 83 of the Finance Act, 1994. 3. The said order of the Assistant Commissioner was reviewed by the Commissioner vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner contained in his order dated 05.03.2009 is without jurisdiction. For the above proposition, the learned advocate 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 such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting 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 before the Commissioner (Appeals) in terms of the order-in-review dated 05.03.2009 is without jurisdiction and against the clear law laid down in the Act. Consequently, the order-in-original passed by the Commissioner (Appeals) is bad in law, being beyond jurisdiction. 8. We also note, at this stage, that the Commissioner has passed the review ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. , 2009 (14) STR 817 (Tri.-Kol). In all the above decisions, it stands held that prior to 19.08.2009 the Commissioner could have passed an order himself and there was no power with him to direct his subordinates to file an appeal before the Commissioner (Appeals). Such direction was held to be without authority of law and the order-in-appeal passed by the Commissioner (Appeals) in terms of such unlawful review order was set aside. 10. By following the above decisions and in view of the analysis made by us in the preceding paragraphs, we are of the view that the impugned order of Commissioner (Appeals) is without jurisdiction and the same is accordingly set aside. The appeal is allowed with consequential relief to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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