TMI Blog2018 (4) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... l was filed before the Commissioner (Appeals) and the same was disposed of. Therefore, the O-in-O which was sought to be revised by the Commissioner was not in existence at the time when the SCN was issued. By doctrine of merger the O-in-O dated 15.12.2008 has merged with O-in-A No. 76/2010. The SCN dated 09.08.2010 is therefore against the provisions of law. Appeal allowed - decided in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped the balance demand. Against such order the department filed appeal before the Tribunal and vide Final Order No. 41263/2016, the appeal filed by the department was dismissed. Meanwhile, SCN dated 09.08.2010 was issued under Section 84 of the Finance Act, 1994 invoking the revisional powers proposing to amend the Order-in-Original No.15/12/2008 and demanding service tax to the tune of ₹ 6, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Against this order, the department had already filed an appeal before the Tribunal. He submitted that the SCN issued proposes to amend the Order-in-Original dated 15.12.2008 and on such date after passing of OIA No. 76/2010 by Doctrine of Merger, the order in-Original is not in existence. Thus, the SCN itself is invalid and void abinitio. She relied upon the decision in the case of CCE, Vs. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder this section shall be passed after the expiry of two years from the date of which the order sought to be revised has been passed. The above provision shows that if any issue is pending in appeal, the Commissioner (Appeals) cannot exercise the revisional jurisdiction. In the present case, the appeal was filed before the Commissioner (Appeals) and the same was disposed of. Therefore, the O- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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