TMI Blog2018 (7) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... if the same is passed in pursuance of the remand order by the Commissioner (Appeals). Appeal allowed - decided in favor of appellant. - ST/2024/2010-SM - 20499/2018 - Dated:- 28-2-2018 - MR. S.S GARG, JUDICIAL MEMBER Mr. Pradyumna G.H., Advocate For the Appellant Mr. Pakshirajan, Assistant Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 31.05.2010 passed by the Commissioner of Service Tax under Section 84 of the Act by exercising the revision jurisdiction and demanding service tax of ₹ 8,74,136/- (Rupees Eight Lakhs Seventy Four Thousand One Hundred and Thirty Six only) along with interest and penalty. Briefly the facts of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice and demanded the service tax on a service which was not as per the show-cause notice. The CESTAT vide Final Order No. 84/2008 dated 29.01.2008 held that the direction of the Commissioner (Appeals) remanding the matter to the original authority to consider demanding service tax under Rent a Cab Operator Service was not correct since the Department had proceeded to demand service tax under Tour Operator Service, Consequently the Tribunal remanded the matter back to the original authority for open remand and De novo adjudication. Thereafter as per the direction of the CESTAT, the Joint Commissioner passed Order-in-Original No. 16/2008 dated 30.05.2008 and it was held that the show-cause notice originally issued to the appellant was be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 84 of the Act. He referred to Section 84 of the Finance Act 1994 which is reproduced herein below: 84. Revision of orders by the Commissioner of Central Excise - (1) The Commissioner of Central Excise may call for the records 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 thereon as he thinks fit. (2) No order which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard. (3) The Commissioner of Central Excise shall communicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, he relied upon the decision in the case of Vardhaman Fabrics Pvt. Ltd. Vs. CCE - 2017 (48) S.T.R. 571 wherein in similar facts and circumstances it was held that as per the doctrine of merger the Commissioner of Central Excise was not empowered to review Order-in-Original which was already merged with the order of the Commissioner (Appeals) and when the Tribunal had remanded the case for De novo adjudication while deciding against Commissioner (Appeals)' order. Learned counsel also relied upon the decision of the CESTAT, Bangalore Bench in the case of Pentagon Intex Pvt. Ltd. Vs. CST, Bangalore reported in 2013 (30) S.T.R. 685 wherein the Tribunal held that an order passed by the original authority as per the directions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered an appeal against the Commissioner (Appeals) order and passed order for de novo decision of the matter. So, in our view the original adjudication order has ceased to exist. On the date on which the Commissioner issued show-cause notice initiating proceedings under Section 84, the original order had already got merged with the order of the Commissioner (Appeals). As such, we are of the view that Commissioner did not enjoy the powers for passing an order-in-revision under Section 84 on such date. Consequently, the impugned order is to be set aside. The appeal is allowed. Further I find that in the case of Vardhaman Fabrics Pvt. Ltd. also it was held that the Commissioner does not have the power under Section 84 of the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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