TMI Blog2016 (11) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... judication order has been challenged before the learned Commissioner (Appeals), the learned Commissioner of Service Tax seized his power to review the adjudication order. As appellant has challenged the leviability of penalty itself, therefore, question of enhancement of penalty does not arise - the Commissioner of Service Tax ceased to have this power to review the adjudication order under Section 84 of the Finance Act, 1994. Appeal allowed - decided in favor of appellant-assessee. - Service Tax Appeal No. 958 of 2010 - Final Order No. 55140/2016 - Dated:- 15-11-2016 - Shri Ashok Jindal, Member (Judicial) And Shri B. Ravichandran, Member (Technical) Shri Manish Gaur, Advocate for the Appellant Shri Sanjay Jain, Authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Commissioner has exercise his power under that Section 84 for enhancement of penalty which is not an issue before the learned Commissioner (Appeals) to decide. In that circumstances, the impugned order is to be upheld. 4. Heard the parties. 5. On careful consideration of the submissions made by both the sides, the facts are admitted that the adjudication order was challenged before the learned Commissioner (Appeals) by the appellants and the appeal was pending before the learned Commissioner (Appeals). As per Section 84 (4) of the Finance Act, 1994 no order under this Section shall be passed by the Commissioner of Service Tax in respect of any issue if an appeal against such issue is pending before the Commissioner of Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uo-moto revision proceedings after examination of the appellate order passed by the ld. Commissioner (Appeals). Within two months of passing of the order by the appellate authority on 16-6-2009, while first appellate order was passed on 16-4-2009. Similar such cases are coming before us frequently. It is embarrassing for us to declare exercise of jurisdiction by one Commissioner is bad and by the other good. But in this case we are compelled to declare that the Revisional order was unsustainable following the judgment of the Hon ble High Court of Rajasthan in the case cited (supra). When we noticed that this case is of similar nature, what that was before the Hon ble High Court of Rajasthan, where the first appellate order was passed on 13- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The said provision is as under :- 35A. Procedure in appeal. (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against; Provided that an order enhancing any penalty or fine in lieu of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order : Provided further that where the Commissioner (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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