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M/s Bharti Airtel Limited Versus CCE, Indore

2016 (9) TMI 1135 - CESTAT NEW DELHI

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 authority and was empowered to pass an order in respect of the same as he may de .....

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ore 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 pass .....

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tain 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 without jurisdiction and the same is accordingly set aside. - Decided in favour of .....

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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 .....

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t aside the order of the original adjudicating authority and allowed the appeal filed by the Revenue. Hence the present appeal by the assessee. 4. The preliminary objection raised by the learned advocate is that, during 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 .....

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oner to direct the lower authorities to file an appeal before the Commissioner (Appeals), the said direction of the Commissioner 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, dur .....

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lowing effect : 84(1) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceedings in which an adjudicating authority subordinate to him has passed any decision or order under this Chapter 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 determi .....

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issioner was empowered to examine the order of the adjudicating authority and if he 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 pe .....

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8. We also note, at this stage, that the Commissioner has passed the review order dated 05.03.2009 in exercise of the provisions of sub-section (2) of Section 35-E of the Central Excise Act, 1944. The dispute in the present appeal relates 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 te .....

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