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2016 (10) TMI 744 - CESTAT NEW DELHI

2016 (10) TMI 744 - CESTAT NEW DELHI - TMI - Power of Commissioner to direct lower authority to file an appeal before Commissioner (Appeals) on 14.08.2009 - refund of service tax - service utilized for export of the goods in terms of notification No. 41/2007-ST dated 6.10.2007 - Section 84 of the Finance Act, 1994 replaced subsequently on 19.08.2009 - whether it was within the jurisdiction of the Commissioner to direct the lower authority to file an appeal prior to 19.08.2009 on which date secti .....

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was passed on 14.8.2009 i.e. 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 14.08.2009 is without jurisdiction and against the clear law laid down in the Act. Conseque .....

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ase of BHANDARI FOILS PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, BHOPAL [2002 (4) TMI 122 - CEGAT, COURT NO. IV, NEW DELHI]. - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 460 of 2010 - ORDER NO- 53566/2016 - Dated:- 12-8-2016 - Ms. Archana Wadhwa, Member (Judicial) and Mr. V Padmanabhan, Member (Technical) Shri Rachit Jain, Advocate for the Appellants Shri K Poddar, AR for the Respondent ORDER Per Archana Wadhwa (for the Bench): 1. As per facts on record, t .....

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sioner to file an appeal before the Commissioner of Central Excise (Appeals). In terms of the said review order of the Commissioner, an appeal was filed before the Commissioner (Appeals), who vide his impugned order set aside the order of the original adjudicating authority and allowed the appeal filed by the Revenue. Hence the present appeal by the assessee. 3. The preliminary objection raised by the learned advocate is that, during the relevant period, there was no power with the Commissioner .....

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ssioner to examine the order of the adjudicating authority and to direct him to apply to the Commissioner (Appeals). Inasmuch as, during the relevant period, no power was vested in the Commissioner 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. 4. The learned .....

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provisions of this Chapter, pass such order thereon as he thinks fit. Thereafter, w.e.f. 19.08.2009, the said Section 84(1) was replaced and new Section 84(1) was introduced which is to the following 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 .....

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f proceedings before the adjudicating authority and was empowered to pass an order in respect of the same as he may deem fit. However, w.e.f. 19.08.2009 the provisions were changed and the Commissioner 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 26.05.2009 and the order in re .....

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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. 7. We also note, at this stage, that the Commissioner has passed the review order dated 14.08.2009 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 .....

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